45 C.F.R. PART 1210—VISTA TRAINEE DESELECTION AND VOLUNTEER EARLY TERMINATION PROCEDURES
Title 45 - Public Welfare
Authority: Secs. 103(c), 402(14), Pub. L. 93–113, 87 Stat. 397 and 407.
Source: 46 FR 35512, July 9, 1981, unless otherwise noted.
This part establishes procedures under which certain Trainees and Volunteers serving in ACTION programs under Pub. L. 93–113 will be deselected from training or termininated from service and how they may appeal their deselection or termination. (a) This part applies to all Trainees and Volunteers enrolled under part A of Title I of the Domestic Volunteer Service Act of 1973, Pub. L. 93–113, as amended, (42 U.S.C. 4951 et seq.,) (hereinafter the “Act”) and full-time Volunteers serving under part C of title I of the Act. (b) This part does not apply to the medical separation of any Trainee or Volunteer. Separate procedures, as detailed in the VISTA Handbook, are applicable for such separations. (a) Trainee means a person enrolled in a program under part A of Title I of the Act or for full-time volunteer service under part C of Title I of the Act who has reported to training but has not yet completed training and been assigned to a project. (b) Volunteer means a person enrolled and currently assigned to a project as a full-time Volunteer under part A of title I of the Act, or under part C of title I of the Act. (c) Sponsor means a public or private nonprofit agency to which ACTION has assigned Volunteers. (d) Hearing Examiner or Examiner means a person having the qualifications described in Appendix A who has been appointed to conduct an inquiry with respect to a termination. (e) National Grant Program means a program operated under part A, title I of the Act in which ACTION has awarded a grant to provide the direct costs of supporting VISTA Volunteers on a national or multi-regional basis. VISTA Volunteers may be assigned to local offices or project affiliates. The national grantee provides overall training, technical assistance and management support for project operations. (f) Local component means a local office or project affiliate of a national grantee to which VISTA Volunteers are assigned under the VISTA National Grants Program. (g) Termination means the removal of a Volunteer from VISTA service by ACTION, and does not refer to removal of a Volunteer from a particular project which has been requested by a sponsor or Governor under §1210.3–2. (h) Deselection means the removal of a Trainee from VISTA service by ACTION. ACTION may deselect a Trainee out of a training program for any of the following reasons: (a) Failure to meet training selection standards which includes, but is not limited to, the following conduct: (1) Inability or refusal to perform training assignments; (2) Disruptive conduct during training sessions; (b) Conviction of any criminal offense under Federal, State or local statute or ordinance; (c) Violation of any provision of the Domestic Volunteer Service Act of 1973, as amended, or any ACTION policy, regulation, or instruction; (d) Intentional false statement, omission, fraud, or deception in obtaining selection as a Volunteer; or (e) Refusal to accept Volunteer Placement. (a) The Regional Director or designee shall notify the Trainee in writing that ACTION intends to deselect the Trainee. The notice must contain the reasons for the deselection and indicate that the Trainee has 5 days to appeal. (b) The Trainee is placed on Administrative Hold at the time of the notice of deselection. (c) The Trainee has 5 days after receipt of the notice to appeal in writing to the Regional Director, or designee specified in the notice, furnishing any supportive documentation. In the appeal letter, the Trainee may request an opportunity to present his or her case in person. (d) If the Trainee does not respond to the notice, deselection becomes effective at the expiration of the Trainee's time to appeal. (e) Within 5 days after receiving the Trainee's appeal, if no personal presentation is requested, the Regional Director or designee must issue a decision. If a personal presentation is requested, the Regional Director or designee must schedule it within 5 days, and must issue a decision 5 days after such presentation. In either case, the decision of the Regional Director or designee is final. ACTION may terminate or suspend a Volunteer based on the Volunteer's conduct for the following reasons: (a) Conviction of any criminal offense under Federal, State, or local statute or ordinance; (b) Violation of any provision of the Domestic Volunteer Service Act of 1973, as amended, or any ACTION policy, regulation, or instruction; (c) Failure refusal or inability to perform prescribed project duties as outlined in the Project Narrative and/or volunteer assignment description and as directed by the sponsoring organization to which the Volunteer is assigned; (d) Involvement in activities which substantially interfere with the Volunteer's performance of project duties; (e) Intentional false statement, omission, fraud, or deception in obtaining selection as a Volunteer; (f) Any conduct on the part of the Volunteer which substantially diminishes his or her effectiveness as a VISTA Volunteer; or (g) Unsatisfactory performance of Volunteer assignment. (a) Removal of a Volunteer from the project assignment may be requested and obtained by a written request supported by a statement of reason by: (1) The Governor or chief executive officer of the State or similar jurisdiction in which the Volunteer is assigned or, (2) The sponsoring organization. The sole responsibility for terminating or transferring a Volunteer rests with the ACTION Agency. (b) A request for removal of a Volunteer must be submitted to the ACTION State Director, who will in turn notify the Volunteer of the request. The State Director, after discussions with the Volunteer and in consultation with the Regional Director, if necessary, has 15 days to attempt to resolve the situation with the sponsor or the Governor's office. If the situation is not resolved at the end of the 15 day period, the Volunteer will be removed from the project and placed on Administrative Hold, pending a decision as set forth in paragraph (c) of this section. (c) The State office will take one of the following actions concerning a Volunteer who has been removed from a project assignment: (1) Accept the Volunteer's resignation; (2) If removal was requested for reasons other than those listed in §1210.3–1, ACTION will attempt to place the Volunteer on another project. If reassignment is not possible, the Volunteer will be terminated for lack of suitable assignment, and he or she will be given special consideration for reinstatement; or (3) If removal from the project is approved based on any of the grounds for early termination as set forth in §1210.3–1, the Volunteer may appeal the termination grounds as detailed in subpart C of this part to establish whether such termination is supported by sufficient evidence. If ACTION determines that the removal based on grounds detailed in §1210.3–1 is not established by adequate evidence, then the procedures outlined in §1210.3–2(c)(2) will be followed. (d) A Volunteer's removal during a term of service may also occur as a result of either the termination of, or refusal to renew, the Memorandum of Agreement between ACTION and the sponsoring organization, or the termination or completion of the initial Volunteer assignment. In such cases, the Volunteer will be placed in Administrative Hold status while the Regional Office attempts to reassign the Volunteer to another project. If no appropriate reassignment within the Region is found within the Administrative Hold period, the Volunteer will be terminated but will receive special consideration for reinstatement as soon as an appropriate assignment becomes available. If appropriate reassignment is offered the Volunteer and declined, ACTION has no obligation to offer additional or alternative assignments. (a) The ACTION State Director may suspend a Volunteer for up to 30 days in order to determine whether sufficient evidence exists to start termination proceedings against the Volunteer. Suspension is not warranted if the State Director determines that sufficient grounds already exist for the initiation of termination. In that event, the termination procedures contained in §1210.3–4 will be followed. (b) Notice of suspension may be written or verbal and is effective upon delivery to the Volunteer. Within 3 days after initiation of the suspension, the Volunteer will receive a written notice of suspension setting forth in specific detail the reason for the suspension. During the suspension period the Volunteer may not engage in project activities, but will continue to receive all allowances, including stipend. (c) At the end of the suspension period, the Volunteer must either be reassigned to a project, or termination proceedings must be initiated. (a) Opportunity for Resignation. In instances where ACTION has reason to believe that a Volunteer is subject to termination for any of the grounds cited in §1210.3–1, an ACTION staff member will discuss the matter with the Volunteer. If, after the discussion, the staff member believes that grounds for termination exist, the Volunteer will be given an opportunity to resign. If the Volunteer chooses not to resign, the administrative procedures outlined below will be followed. (b) Notification of Proposed Termination. The Volunteer will be notified, in writing by certified mail, of ACTION's intent to terminate him or her by the ACTION State Director at least 15 days in advance of the proposed termination date. The letter must give the reasons for termination, and notify the Volunteer that he or she has 10 days within which to answer in writing and to furnish any affidavits or written material. This answer must be submitted to the ACTION State Director or a designee identified in the notice of proposed termination. (c) Review and Notice of Decision. (1) Within 5 working days after the date of receipt of the Volunteer's answer, the State Director or designee will send a written Notice of Decision to the Volunteer by certified mail. (If no answer is received from the Volunteer within the time specified, the State Director or designee will send such notice within 5 days after the expiration of the Volunteer's time to answer.) (2) If the decision is to terminate the Volunteer, the Notice will set forth the reasons for the decision, the effective date of termination (which, if the Volunteer has filed an answer, may not be earlier than 10 days after the date of the Notice of Decision), and the fact that the Volunteer has 10 days in which to submit a written appeal to the Regional Director. (3) A Volunteer who has not filed an answer pursuant to the procedures outlined above is not entitled to appeal the decision or request a hearing and may be terminated on the date of the Notice. (d) Allowances and Project Activities. (1) A Volunteer who files an answer within the 10 days allowed by §1210.3–4(b) with the State Director or designee following receipt of the notice of proposed termination, will be placed in Administrative Hold status, and may continue to receive regular allowances, but no stipend, in accordance with ACTION policy, until the appeal is finally decided. The Volunteer may not engage in any project related activities during this time. (2) If the proposed termination is reversed, the Volunteer's stipend and any other allowances lost during the period of review will be reinstated retroactively. (a) Entitlement to Representation. A Volunteer may be accompanied, represented and advised by a representative of the Volunteer's own choice at any stage of the appeal. A person chosen by the Volunteer must be willing to act as representative and not be disqualified because of conflict of position. (b) Time for Preparation and Presentation. (1) A Volunteer's representative, if a Volunteer or an employee of ACTION, must be given a reasonable amount of time off from assignment to present the appeal. (2) ACTION will not pay travel expenses or per diem travel allowances for either a Volunteer or the Volunteer's representative in connection with the preparation of the appeal, except to attend the hearing as provided in §1210.3–7(c)(5). (c) Access to Agency Records. (1) A Volunteer is entitled to review any material in his or her official Volunteer folder and any relevant Agency documents to the extent permitted by the Privacy Act and the Freedom of Information Act, (5 U.S.C. 552a; 5 U.S.C. 552). Examples of documents which may be withheld from Volunteers include references obtained under a pledge of confidentiality, official Volunteer folders of other Volunteers and privileged intra-Agency memoranda. (2) A Volunteer may review relevant documents in the possession of a sponsor to the same extent ACTION would be entitled to review them. (a) Appeal to Regional Director. A Volunteer has 10 days from the Notice of Decision issued by the State Director or designee in which to appeal to the Regional Director. The appeal must be in writing and specify the reasons for the Volunteer's disagreement with the decision. The Regional Director has 10 days in which to render a written decision on the Volunteer's appeal, indicating the reason for the decision. In notifying the Volunteer of the decision, the Regional Director must also inform the Volunteer of his or her opportunity to request the appointment of a Hearing Examiner and the procedure to be followed. (b) Referral to Hearing Examiner. If the Volunteer is dissatisfied with the decision of the Regional Director, the Volunteer has 5 days in which to request the appointment of a Hearing Examiner. The Regional Director must act on that request within 5 days. The Hearing Examiner must possess the qualifications specified in Appendix A to this part, and may not be an employee of ACTION unless his or her principal duties are those of Hearing Examiner. (a) Scope of Inquiry. (1) The Examiner shall conduct an inquiry of a nature and scope appropriate to the issues involved in the termination. If the Examiner determines that the termination involves relevant disputed issues of fact, the Examiner must hold a hearing unless it is waived by the Volunteer. If the Examiner determines that the termination does not involve relevant disputed issues of facts, the Examiner need not hold a hearing, but must provide the parties an opportunity for oral presentation of their respective positions. At the Examiner's discretion, the inquiry may include: (i) The securing of documentary evidence; (ii) Personal interviews, including telephone interviews; (iii) Group meetings; or (iv) Affidavits, written interrogatories or depositions. (2) The Examiner's inquiry shall commence within 7 days after referral by the Regional Director. The Examiner shall issue a report as soon as possible, but within 30 days after referral, except when a hearing is held. If hearing is held, the Examiner shall issue a report within 45 days after the referral. (b) Conduct of Hearing. If a hearing is held, the conduct of the hearing and production of witnesses shall conform with the following requirements: (1) The hearing shall be held at a time and place determined by the Examiner who shall consider the convenience of parties and witnesses and expense to the Government in making the decision. (2) Ordinarily, attendance at the hearing will be limited to persons determined by the Examiner to have a direct connection with it. If requested by the Volunteer, the Examiner must open the hearing to the public. (3) The hearing shall be conducted so as to bring out pertinent facts, including the production of pertinent records. (4) Rules of evidence shall not be applied strictly, but the Examiner may exclude irrelevant or unduly repetitious testimony or evidence. (5) Decisions on the admissibility of evidence or testimony shall be made by the Examiner. (6) Testimony shall be under oath or affirmation, administered by the Examiner. (7) The Examiner shall give the parties an opportunity to present oral and written testimony that is relevant and material, and to cross-examine witnesses who appear to testify. (8) The Examiner may exclude any person from the hearing for conduct that obstructs the hearing. (c) Witnesses. (1) All parties are entitled to produce witnesses. (2) Volunteers, employees of a sponsor, and employees of ACTION shall be made available as witnesses when requested by the Examiner. The Examiner may request witnesses on his or her own initiative. Parties shall furnish to the Examiner and to opposing parties a list of proposed witnesses, and an explanation of what the testimony of each is expected to show, at least 10 days before the date of the hearing. The Examiner may waive the time limit in appropriate circumstances. (3) Employees of ACTION shall remain in a duty status during the time they are made available as witnesses. (4) Volunteers, employees and any other persons who serve as witnesses shall be free from coercion, discrimination, or reprisal for presenting their testimony. (5) The Examiner must authorize payment of travel expense and per diem at standard Government rates for the Volunteer and a representative to attend the hearing. (6) The Examiner may authorize payment of travel expense and per diem at standard Government rates for other necessary witnesses to attend the hearing if he or she determines that the required testimony cannot be satisfactorily obtained by affidavit, written interrogatories or deposition at less cost. (d) Report of Hearing. (1) The Examiner shall determine how any hearing shall be reported and shall have either a verbatim transcript or written summary of the hearing prepared, which shall include all pertinent documents and exhibits submitted and accepted. If the hearing is reported verbatim, the Examiner shall make the transcript a part of the record of the proceedings. (2) If the hearing is not reported verbatim, a suitable summary of pertinent portions of the testimony shall be made part of the record of proceedings. When agreed to in writing, the summary constitutes the report of the hearing. If the Examiner and the parties fail to agree on the hearing summary, the parties are entitled to submit written exceptions to any part of the summary, and these written exceptions and the summary will constitute the report of the hearing and shall be made part of the record of proceedings. (3) The Volunteer may make a recording of the hearing at the Volunteer's own expense if no verbatim transcript is made. (a) Preparation and Content. The Examiner shall establish a termination file containing documents related to the termination, including statements of witnesses, records or copies thereof, and the report of the hearing when a hearing was held. The Examiner shall also prepare a report of findings and recommendations which shall be made part of the termination file. (b) Review by Volunteer. On completion of the termination file, the Examiner shall make it available to the Volunteer and representative for review and comment before submission to the Director of VISTA. Any comments by the Volunteer or representative should be submitted to the Hearing Examiner for inclusion in the termination file not later than 5 days after the file is made available to them. The comments should identify those parts of the Examiner's report which support the appeal. (c) Submission of termination file. Immediately upon receiving the comments from the Volunteer the Hearing Examiner shall submit the termination file to the Director of VISTA. The Director of VISTA shall issue a written decision, including a statement of the basis for the decision, within 10 days after receipt of the termination file. The decision of the Director of VISTA is the final Agency decision. (a) If the Regional Director or Director of VISTA reinstates the Volunteer, the Regional Director may at his or her discretion reassign the Volunteer to the Volunteer's previous project or to another project. The Regional Director, in making such a decision, must request the Volunteer's views, but has the final decision on the Volunteer's placement. (b) If the Volunteer's termination is reversed, stipend and other allowances lost during the appeal period will be paid retroactively. All termination and appeal files shall be forwarded to the Director of VISTA after a final decision has been made and are subject to the provisions of the Privacy Act and Freedom of Information Act. No part of any successful termination appeal may be made part of, or included in, a Volunteer's official folder. Trainees and Volunteers serving in the National Grant Program as defined in §1210.1–3(e) will be subject to the same termination procedure as standard VISTA Trainees and Volunteers with the following exceptions: (a) For Trainees, the deselection procedure, [See §1210.2–2] will be handled by the Project Manager in ACTION/Headquarters. (b) The Initiation of termination, [See §1210.3–4 (a) and (b)] will be handled by the VISTA Project Manager in ACTION/Headquarters, with the concurrence of the appropriate State Director. The Review and Notice of Decision, [See §1210.3–4(c)] will be handled by the VISTA Project Manager in ACTION/Headquarters. (c) The Appeal of termination, [See §1210.3–6(a)] will be handled by the Chief of VISTA Branch and not the Regional Director. (d) The final decision on a Volunteer appeal will be made by the Director of VISTA as provided in §1210.3. (a) An Examiner must meet the requirements specified in either paragraph (1), (2), (3), or (4) of this appendix: (1)(a) Current employment in Grades GS–12 or equivalent, or above; (b) Satisfactory completion of a specialized course of training prescribed by the Office of Personnel Management for Examiners; (c) At least four years of progressively responsible experience in administrative, managerial, professional, investigative, or technical work which has demonstrated the possession of: (i) The personal attributes essential to the effective performance of the duties of an Examiner, including integrity, discretion, reliability, objectivity, impartiality, resourcefulness, and emotional stability. (ii) A high degree of ability to: —Identify and select appropriate sources of information; collect, organize, analyze and evaluate information; and arrive at sound conclusions on the basis of that information; —Analyze situations; make an objective and logical determination of the pertinent facts; evaluate the facts; and develop practical recommendations or decisions on the basis of facts; —Recognize the causes of complex problems and apply mature judgment in assessing the practical implications of alternative solutions to those problems; —Interpret and apply regulations and other complex written material; —Communicate effectively orally and in writing, including the ability to prepare clear and concise written reports; and —Deal effectively with individuals and groups, including the ability to gain the cooperation and confidence of others. (iii) A good working knowledge of: —The relationship between Volunteer administration and overall management concerns; and —The principles, systems, methods and administrative machinery for accomplishing the work of an organization. (2) Designation as an arbitrator on a panel of arbitrators maintained by either the Federal Mediation and Conciliation Service or the American Arbitration Association. (3) Current or former employment as, or current eligibility on the Office of Personnel Management's register for Hearing Examiner, GS–935–0. (4) Membership in good standing in the National Academy of Arbitrators. (b) A former Federal employee who, at the time of leaving the Federal service, was in Grade GS–12 or equivalent, or above, and who meets all the requirements specified for an Examiner except completion of the prescribed training course, may be used as an Examiner upon satisfactory completion of the training course.
Title 45: Public Welfare
PART 1210—VISTA TRAINEE DESELECTION AND VOLUNTEER EARLY TERMINATION PROCEDURES
Section Contents
§ 1210.1-1 Purpose.
§ 1210.1-2 Scope.
§ 1210.1-3 Definitions.
§ 1210.2-1 Grounds for deselection.
§ 1210.2-2 Procedure for deselection.
§ 1210.3-1 Grounds for termination.
§ 1210.3-2 Removal from project.
§ 1210.3-3 Suspension.
§ 1210.3-4 Initiation of termination.
§ 1210.3-5 Preparation for appeal.
§ 1210.3-6 Appeal of termination.
§ 1210.3-7 Inquiry by Hearing Examiner.
§ 1210.3-8 Termination file and Examiner's report.
§ 1210.3-9 Decision by Director of VISTA.
§ 1210.3-10 Reinstatement of Volunteer.
§ 1210.3-11 Disposition of termination and appeal files.
§ 1210.4 Early termination procedures for National Grant Trainees and Volunteers.
Appendix A to Part 1210—Standard for Examiners
Subpart A—General
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§ 1210.1-1 Purpose.
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§ 1210.1-2 Scope.
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§ 1210.1-3 Definitions.
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Subpart B—VISTA Trainee Deselection
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§ 1210.2-1 Grounds for deselection.
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§ 1210.2-2 Procedure for deselection.
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Subpart C—VISTA Volunteer Early Termination
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§ 1210.3-1 Grounds for termination.
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§ 1210.3-2 Removal from project.
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§ 1210.3-3 Suspension.
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§ 1210.3-4 Initiation of termination.
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§ 1210.3-5 Preparation for appeal.
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§ 1210.3-6 Appeal of termination.
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§ 1210.3-7 Inquiry by Hearing Examiner.
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§ 1210.3-8 Termination file and Examiner's report.
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§ 1210.3-9 Decision by Director of VISTA.
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§ 1210.3-10 Reinstatement of Volunteer.
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§ 1210.3-11 Disposition of termination and appeal files.
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Subpart D—National Grant Trainees and Volunteers
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§ 1210.4 Early termination procedures for National Grant Trainees and Volunteers.
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Appendix A to Part 1210—Standard for Examiners
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