Section 854.81 - Administrative Action Based on Unsatisfactory Performance(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.(C) If a decision is made to issue a written reprimand, the written reprimand will be accompanied by a summary of the evidence justifying the reprimand, suggested steps for correcting the violation, and the consequences of not correcting the violation. All reprimands shall contain notice of the licensee's right to appeal the reprimand and a statement that failure to correct the violation may result in further administrative action.(D) If a decision is made to place a licensee on probation, the Agency shall deliver to the licensee a letter of probation containing the following: (i) the specific reasons for probation;(ii) the remedial action required to remove the licensee from probation;(iii) the time within which the remedial action must take place;(iv) the consequences of failure to take remedial action within the prescribed time frame; and(v) notice of the licensee's right to appeal.(E) Upon satisfactory completion of the remedial action outlined in the letter of probation, a licensee shall be removed from probation.(F) Failure of the licensee to complete remedial requirements within the prescribed time frame shall result in one or more of the following actions: (ii) extension of probation;(iii) restrictions on applying for another facility;(iv) removal from the facility; or(v) termination of license.(G) If, after the manager has had an opportunity to respond, a decision is made that sufficient grounds exist to remove the manager from a facility, the Agency shall notify the manager in writing by hand delivery or certified mail with a return receipt requested that the manager's assignment to the BET facility has been terminated and the manager must vacate the facility. The removal letter shall contain the following information:(i) specific reasons for removal from the facility;(ii) actions required by the manager, if any;(iii) requirements for obtaining reassignment; and(iv) notice of the manager's right to appeal under the Act.(H) If, after the manager has had an opportunity to respond, a decision is made that sufficient grounds exist for termination, the Agency shall notify the manager in writing by hand delivery, e-mail, or certified mail with a return receipt requested that the Agency has decided that sufficient cause exists to terminate the manager's license and the manager must vacate the facility. The termination letter shall contain: (i) specific reasons for termination;(ii) actions required by the licensee, if any;(iii) procedures for applying for any other Agency services for which the individual may be eligible; and(iv) notice of the licensee's rights under the Randolph-Sheppard Act.(3) The provisions of paragraph (2) of this subsection notwithstanding, pending a determination with respect to administrative action, a manager may be removed from a facility if the Agency considers such removal to be in the best interest of BET and if efforts to correct the deficiencies have been unsuccessful.(4) During the license termination process, the manager shall not be eligible for assignment to any other BET facility.(d) Before termination of a license, the Agency shall afford the licensee an opportunity for a full evidentiary hearing as described in § 854.82(e) of this title (relating to Procedures for Resolution of Manager's Dissatisfaction).40 Tex. Admin. Code § 854.81
Adopted by Texas Register, Volume 44, Number 26, June 28, 2019, TexReg 3300, eff. 9/1/2019; Amended by Texas Register, Volume 47, Number 26, July 1, 2022, TexReg 3826, eff. 7/4/2022