Civil Service Rule XIV provides that employees may appeal dismissal, demotion, or suspension / non-punitive suspension actions to the Commission. In cases involving dismissal, demotion, or suspension / non-punitive suspension, an appeal hearing by the Commission is mandatory, if requested by the employee.
In cases other than dismissal, demotion, or suspension / non-punitive suspension, a hearing is discretionary with the Commission. When discretionary, the Commission decides whether to have a hearing after a review of written materials submitted by the employee and by the Department or after a brief oral summary of the merits of the case by the petitioner.
Section 5.A of Civil Service Rule XI provides that “The appointing authority may terminate a probationary employee at any time during the probationary period without the right of hearing by or appeal to the Commission except when an employee alleges, and substantiates in writing, discrimination … as the reason for termination.”
Upon receipt of a request for an appeal hearing, the Human Resources Department places the appeal request on the agenda of the next meeting of the Civil Service Commission. At that meeting, the Commission will decide whether to hear the appeal. At that meeting, County Counsel may argue, for the Department, that a hearing should not be granted. If the Commission decides to grant a hearing, or if a hearing is mandatory, the Commission will set a mutually agreeable date for the hearing.
A preparatory meeting will be scheduled by the County Counsel for the operating department as soon as possible after an employee files an appeal. The appellant’s immediate supervisor, any managers involved in the decision to take disciplinary action, County Counsel, and the Employee & Labor Relations representative should attend this meeting. Any other management representatives with relevant input should also attend (e.g. EEO Manager). At this meeting, the team should put together the department’s case, and anticipate and develop responses to the appellant’s case. The department’s case consists of:
- The Rule – The rule(s) which the employee has broken, as cited in the Skelly Decision Letter.
- The Facts – A description of how the employee broke the rule(s). This is taken from the body of the Skelly letter.
- Proof – Evidence to show that the employee did violate the rule(s). This proof is in the form of the “material relied on” used by the deciding official in making the decision to discipline.
In addition to the above, the department’s case should also answer the following questions:
- Was the employee given forewarning or foreknowledge of the possible consequences of misconduct? This usually consists of recordation of counseling sessions, but may also include policies signed by the employee.
- Did the department, before administering discipline, make an effort to determine whether the employee did, in fact, violate the rule(s)?
- Was the investigation conducted fairly and objectively?
- Have the rules and discipline been applied equitably and without discrimination to all employees?
- Was the degree of discipline reasonably related to the seriousness of the offense and to the record of the employee in his/her service with the organization?
A brief summary (one page if possible) will be presented to the Commission and used as a “talking paper.” This “talking paper” will help to keep the Commission focused on the pertinent issues of the case, and will assist the Department representative in presenting the case in a logical and understandable manner. The paper should include:
- The rule which was violated
- A brief description of how the employee violated the rule
- A chronology of significant events including:
- Dates of specific incidents leading to discipline
- Dates of counseling sessions
- Dates of any prior discipline
- Brief statements addressing anticipated allegations from the appellant
The Department should be represented before the Commission by the appellant’s immediate supervisor, a manager from the Department who is familiar with the case, and by County Counsel. If other individuals are needed to provide specific information or testimony, they should be called in as witnesses and dismissed after testifying rather than remaining for the entire session. The specifics of each case will guide its presentation, but a general guide is as follows:
Counsel introduces the case by raising any pertinent legal points and briefly going over the talking paper.
Counsel calls witnesses to present the Department’s case. Counsel will have gone over questions to be asked and answers to be given in advance of the hearing. The witnesses should present the case in a factual manner, without impugning the character of or assigning motives to the appellant. Care should be taken by witnesses to avoid references to the “attitude” of the appellant. The focus should be on observable conduct.
During the presentation, Counsel may introduce exhibits to support the Department’s case. These should include the Skelly Decision Letter, and the material relied on by the deciding official in determining to take disciplinary action.
During the appellant’s presentation, management representatives should take notes of points raised by the appellant. Any inaccurate or misleading statements of significance should be briefly rebutted at the end of the appellant’s presentation. Statements made by the appellant that are not pertinent, or that would not be of significance to the Commission should be ignored. It is vital to focus the Commission on management’s case, rather than allow the appellant to obscure the case by engaging the Department in debates or discussions of irrelevant issues.
All management representatives must be aware of the non-verbal communications they present to the Commission. Without knowing it, you can easily give these signals by rolling your eyes, frowning, and commenting on or shaking your head in disbelief at statements made by the appellant or his/her representative. The Commission may interpret such behaviors as an indication that you do not openly listen to or respect the employee on the job.
Counsel provides a closing statement summarizing the standards that weren’t met, describing how the employee failed to meet the standards, and stating that the disciplinary action taken was for cause.