| (a) Causes for administrative action based on unsatisfactory
performance. One or more of the following acts or omissions by a manager
shall subject a manager to administrative action for unsatisfactory
performance:
(1) Failing to operate the assigned facility as set
forth in the permit or contract with the host and/or in the manager's
record of assignment unless prior written approval to operate the
facility in another manner has been obtained from the Agency.
(2) Failing to pay money that is due from the operation
of the facility, including, but not limited to, taxes, fees, advances,
or assessments to a governmental entity or supplier, or knowingly
giving false or deceptive information to or failing to disclose required
information to or misleading in any manner a governmental entity,
including the Agency or a supplier.
(3) Failing to file required financial and other records
with the Agency or preserve them for the time required by this subchapter.
(4) Failing to cooperate with audits conducted by the
Agency or other state or federal agencies.
(5) Failing to comply with filing and reporting requirements
established under state and federal tax laws relating to the operation
of the facility.
(6) Failing to maintain insurance coverage required
by these rules.
(7) Using BET equipment or facility premises to operate
another business.
(8) Failing to properly maintain facility equipment
in a clean and operable condition within the scope of the manager's
level of maintenance authorization.
(9) Intentionally abusing, neglecting, using, or removing
facility equipment without prior written Agency authorization.
(10) Operating a facility under the influence of substances
that interfere with the operation of the facility, including alcohol
and illegal or prescription drugs.
(11) Operating a BET facility in a manner that demonstrably
jeopardizes the Agency's investment in the facility.
(12) Using privileged information about an existing
facility to compete with the Agency for the facility.
(13) Failing to comply with any federal or state law
prohibiting violation of human rights or discrimination and failure
to ensure that services are provided without distinction on the basis
of race, gender, color, national origin, religion, age, political
affiliation, creed, or disability.
(14) Failing to maintain the necessary skills and abilities
for effectively managing a facility.
(15) Using a facility to conduct unlawful activities.
(16) Failing to comply with the manager's responsibilities
under applicable law, this subchapter, the requirements of the BET
manual, or any instruction by Agency staff.
(17) Communicating or causing another individual to
communicate with a member of a selection panel or an applicant for
a facility then being considered for assignment for the purpose of
influencing or manipulating the selection of an applicant by offering
to give a thing or act of value, including promises of future benefit,
or by threat.
(18) Failing to complete annual continuing education
requirements.
(b) Types of administrative actions. The five types
of administrative actions that are based on unsatisfactory performance
are as follows:
(1) Written reprimand. Written reprimand is a formal
statement describing violations of applicable law, this subchapter,
the requirements of the BET manual, or any instruction by Agency staff.
(2) Probation. Probation is allowing a licensee to
continue in BET to satisfactorily remedy a condition that is not acceptable
under this subchapter. If the condition causing probation is satisfactorily
remedied within the time periods specified in the written notice of
probation, the probation will be lifted. If the unacceptable condition
is not remedied within the time specified, additional and more serious
administrative actions may ensue. When a licensee who has been on
probation two times in a three-year period qualifies for probation
for the third time within those three years, the licensee's license
may be revoked according to Agency rules.
(3) Loss of facility. Loss of facility is the removal
of a manager from the manager's current facility for administrative
reasons when the manager's actions or inactions endanger the Agency's
investment in the facility.
(4) Termination. Termination is the revocation of a
license and the removal of the licensee from BET.
(5) Emergency removal of manager.
(A) A manager may be summarily removed from a facility
in an emergency. An emergency shall be considered to exist when the
Agency, in consultation with the ECM chair, determines that some act
or acts or some failure to act of that manager or any individual who
is an employee, server, or agent of such manager, will, if such removal
does not occur:
(i) result in a clear danger to the health, safety,
or welfare of any individual or to the property of any individual
in or around the facility; or
(ii) result in a deterioration of the existing or future
relationship with the host, thereby putting the continuation of the
facility in jeopardy; or
(iii) present a clear potential of substantial loss
or damage to the property of the State of Texas.
(B) In any case in which a manager has been summarily
removed from a facility on an emergency basis for any of the reasons
set forth in subparagraph (A) of this paragraph, the manager shall
be entitled to have a hearing about the necessity of the removal within
10 days after the removal has occurred.
(C) The time period for the hearing may be extended
only by mutual agreement of the manager and the Agency under the following
circumstances: if an official holiday of the State of Texas falls
within the period, then the period shall be extended by the time of
the holiday; or, if the services of an arbitrator cannot be obtained
in time to hold the hearing within the period, then the period shall
be extended by the time necessary to obtain the services of an arbitrator
and schedule the hearing.
(D) If the manager desires to have a hearing, the manager
shall notify the Agency in writing via mail or electronically via
email within 48 hours following the removal. The written notification
need state only the name of the manager, the location of the facility,
and that the manager desires to have a hearing about the need for
summary removal. The request may be delivered to the BET director,
the VRD director, or any local BET staff member in the geographic
region in which the facility is located.
(E) Upon receipt of any such request, the BET director
shall obtain the services of an arbitrator from the American Arbitration
Association (AAA) or other similar organization to conduct the hearing.
(F) The manager shall be notified of the date, time,
and place of the hearing. To the extent possible, the hearing shall
be conducted in an area near the location of the facility.
(G) The hearing shall be conducted in accordance with
the rules of AAA, except that the arbitrator shall be requested to
announce orally a decision at the conclusion of the hearing.
(H) If the arbitrator determines that no emergency
necessitating the removal of the manager exists, then the manager
shall be immediately restored to the operation of the facility.
(I) No determination made as a result of the hearing
shall operate to prejudice the rights of the manager to proceed with
a grievance in accordance with the terms of this subchapter and the
Act.
(c) Administrative procedures.
(1) The Agency shall decide what administrative action
to take based on the seriousness of the violation, the damage to BET
facilities and/or equipment, and the licensee's record.
(2) Upon receipt of information that indicates that
administrative action may be appropriate, the Agency shall take the
following actions before deciding whether to take administrative action:
(A) The Agency shall notify the licensee in writing
via mail or electronically via email of the allegations and reasons
that administrative action is being considered. The notice shall either
be hand-delivered and read to the licensee, or be delivered to the
licensee's work, e-mail address, or home address.
(B) The licensee shall have five business days to respond
to the notice, either in person or in writing. The response shall
be made to the individual designated in the notice. After receiving
the licensee's response, the Agency shall decide what administrative
action, if any, is appropriate. If no response is received from the
licensee in a timely manner, the Agency shall decide without the licensee's
response what administrative action, if any, will be taken.
Cont'd... |
