SECTION 1. WHO MAY PETITION FOR AN APPEAL: Unless otherwise proscribed, a person may petition requesting an appeal before the Commission if:
A. He/she is entitled to an appeal under the provisions of the Charter or these rules; and
B. He/she is adversely affected by any action or decision of the Director taken under authority of these rules.
SECTION 2. THE PETITION FOR AN APPEAL:
1. A petition for appeal shall be in writing, signed by the petitioner, and shall state the petitioner’s mailing address, the ruling or action being appealed from, and the facts or reasons in detail upon which the petitioner is basing the appeal. A petition for appeal may be rejected if the petition fails to state specific facts or reasons in detail upon which the petitioner is basing the case. If rejected, the Commission may, in its sole discretion, grant an appellant leave to, within a time period prescribed by the Commission, submit an amended appeal. A hearing on the merits of an appeal may be denied if the petition fails to state specific facts or reasons which, if true, would entitle the petitioner to any relief.
2. In cases of dismissal, demotion, reduction in step or suspension, a general denial of the allegations made by the appointing authority in the notice of such dismissal, demotion, suspension shall constitute an adequate statement by the petitioner of the required facts and reasons.
B. Time Within Which Petition for Appeal Must Be Filed
1. Unless otherwise provided in these rules, a petition must be received by mail, fax or hand delivery to the director within the following time limits:
a. Appeals of a dismissal, demotion, reduction in step, non-punitive disciplinary letter or unpaid disciplinary suspension must be received by the Director within 14 calendar days after notice of such action or ruling is mailed or hand delivered to the employee.
Appeals of any other ruling must be received by the Director within 14 calendar days after notice of such action is mailed or hand delivered to the employee.
Appeals of rejection during probationary period may only be filed under the conditions described in Section 5.A of Civil Service Rule XI.
Appeals by disqualified job applicants may only be filed under the conditions described in Section 6 of Civil Service Rule VI
Appeals of Examinations may only be filed under the conditions described in Section 8 of Civil Service Rule VII.
b. If no such notice was given to the employee, within thirty (30) days after the date the employee learns of the ruling or should have learned of the ruling upon the exercise of due diligence.
SECTION 3. JURISDICTION, METHOD OF HEARING AND STANDARD OF PROOF: At its first regular meeting after receiving a petition which complies with the foregoing requirements, and provided that at least three (3) working days shall have elapsed, the Commission shall determine whether the Commission has jurisdiction over the appeal, the method of appeal and may determine the merits of the appeal.
A. If the petition for an appeal meets the applicable requirements of Sections 1 and 2 above, the Commission has jurisdiction over the appeal.
B. If the Commission determines that the petition for an appeal is within its jurisdiction, the Commission shall determine the method by which merits of the appeal will be determined.
1. In cases involving dismissal, demotion, reduction in step or suspension, an appeal hearing by the Commission is mandatory, if requested. The Commission shall determine whether the matter will be heard at a meeting of the Commission called for that purpose, or whether it will be heard by a hearing board composed of one or more members of the Commission, or by a hearing officer appointed for that purpose, and shall set the matter for hearing. In the event a hearing officer is designated for the purpose of the appeal, the Commission may order the costs of such officer be borne equally by the County and appellant.
2. In cases other than dismissal, demotion, reduction in step, or suspension, a hearing is discretionary with the Commission. When discretionary, the merits of the appeal may be granted or denied after a review of written materials submitted to the Commission by all of the parties concerned or, in the alternative, after a brief oral summary of the merits of an appeal by the petitioner made at the time when the petition requesting a hearing comes before the Commission.
C. The standard of proof by the Commission shall be “preponderance of the evidence.”
SECTION 4. CONTINUANCE PENDING TERMINATION OF CRIMINAL PROCEEDINGS: Where the employee is appealing from a ruling or order which resulted from alleged criminal activities of the employee, and criminal charges are pending against the employee in a court of competent jurisdiction because of such activities, the Commission may suspend all proceedings on the appeal until the termination of such criminal proceedings in the trial court. In the event of such suspension of proceedings, the Commission, at its first regular meeting after the termination of such criminal proceedings in the trial court, shall determine whether the matter will be heard at a meeting of the Commission called for that purpose, or whether it will be heard by a hearing board composed of one or more members of the Commission, and shall set the matter for hearing.
SECTION 5. NOTICE OF HEARING: The petitioner shall be given not less than five days notice in writing of the date and place of such hearing. In hearings in which an action of a department head is at issue, the department head shall be given not less than five days notice in writing of the date and place of such hearing.
SECTION 6. PARTIES TO BE READY: On the date set for the hearing, the parties involved will be expected to be ready to proceed at the hour set, and any failure to be prepared to proceed at that time may be deemed by the Commission to be an admission by the unprepared party that the party’s case is not meritorious, and that a decision should be rendered against that party. If the party against whom the decision was rendered, offers, within 30 days of the decision, an explanation satisfactory to the Commission, the Commission may set aside its decision and reschedule the hearing.
SECTION 7. RIGHTS OF PETITIONER: When a hearing is granted, the petitioner shall be entitled to:
A. Be represented by counsel or by a representative of his/her choice.
B. Testify under oath or affirmation.
C. Subpoena witnesses in his/her behalf.
D. Cross examine all witnesses appearing against him/her.
E. Cross examine any County employee whose actions are in question or who has investigated any of the matters involved in the case and whose reports are offered in evidence before the Commission, hearing board, or hearing officer.
F. Impeach any witness before the Commission, hearing board or hearing officer.
G. Present such affidavits, exhibits, and other evidence as the Commission, hearing board, or hearing officer deems pertinent to the matter then before it, subject to the authority of the Commission, hearing board, or hearing officer to exclude irrelevant or repetitious evidence.
SECTION 8. RIGHTS OF THE APPOINTING POWER AND OTHERS: The appointing authority, the Director or other members of his/her staff, and any other person whom the Commission, hearing board, or hearing officer finds to be interested in the matter shall be entitled to the same rights, and be subject to the same limitations, applicable to the petitioner.
SECTION 9. APPEARANCE OF PETITIONER: The appearance of the petitioner shall be required at all hearings except as provided herein.
A. The appearance of the petitioner shall not be required where the Commission has determined, pursuant to Section l, that a decision on the matter raised by the petitioner shall be made after a review of written materials submitted by all parties concerned, or where these rules provide that the Commission shall make a decision in such a manner.
B. The Commission, hearing board, or hearing officer shall have discretion to consent to the absence of the petitioner upon a showing of good cause.
SECTION 10. UNEXCUSED ABSENCE OF PETITIONER: Unexcused absence of the petitioner whose presence is required at a hearing may be deemed by the Commission, the hearing board, or hearing officer to be a withdrawal of the petition and consent to the action or ruling from which the appeal was taken.
SECTION 11. ASSISTANCE OF COUNSEL: The Commission, hearing board, or hearing officer, may have the legal advice and assistance of County Counsel or his/her representative, or, with the consent of County Counsel, the Commission or the hearing board may retain other counsel to advise and assist during the hearing. Any attorney advising and assisting the Commission, hearing board, or hearing officer, as provided herein shall, if requested to do so by the Commission, hearing board, or hearing officer, be present during the deliberations of the Commission, hearing board, or hearing officer following the presentation of all evidence.
SECTION 12. EVIDENCE: Hearings shall be informal, and need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule that might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be admitted for any purpose, but shall not be sufficient, in itself, to support a finding unless it would be admissible over objection in civil actions. The rules of privilege and of official or judicial notice shall be effective to the same extent as in civil actions. Irrelevant or repetitious evidence shall be excluded. Oral evidence shall be taken only under oath or affirmation.
SECTION 13. SUBPOENAS: The Director or the Chairperson of the Commission shall sign subpoenas and subpoenas duces tecum for the appointing authority upon request of that authority. The Director or the Chairperson of the Commission shall also sign such subpoenas for the petitioner, upon request of the petitioner or his/her attorney.
SECTION 14. EXCLUSION OF WITNESSES: The Commission, the hearing board, or the hearing officer may exclude witnesses not under examinations, except the Director, the legal adviser to the Commission, hearing board or hearing officer, the petitioner, the petitioner’s attorney, the appointing authority, and counsel for the appointing authority.
SECTION 15. TESTIMONY OF PETITIONER: At hearings on dismissal, demotion, or suspension in excess of five days, the petitioner shall not be required to testify, but may be cross examined as to any matter relevant to the hearing if he/she takes the stand voluntarily. In any other type of hearing the petitioner, if he/she does not testify in his/her own behalf, may be called by the appointing authority, Commission or hearing board and examined as if under cross examination.
SECTION 16. BURDEN OF PROOF: In any hearing on an appeal from a dismissal, demotion, or suspension the burden of proof shall be on the appointing authority. In all other types of hearings, the burden of proof shall be on the petitioner.
SECTION 17. FINDINGS AND DECISION:
A. In a hearing before a hearing board or hearing officer, the hearing board or hearing officer shall submit a written report to the Commission which shall include findings of fact and a proposed decision. The Commission may adopt the hearing board’s or hearing officer’s finding, or it may make findings of its own. After reviewing the report of the hearing board or hearing officer and making a determination of findings, the Commission shall render a decision.
- In a hearing before the Commission, the parties are encouraged to submit a proposed “Findings of Fact and Decision” prior to the hearing. In a hearing before the Commission, after all evidence has been presented and arguments concluded the Commission will adjourn its meeting to a stated time for the purpose of considering the matter and will, when its deliberations are concluded, make written findings of fact and render a decision. This decision shall uphold, modify, or set aside the action taken and appealed from. If the action taken is upheld, it shall be final as of the date it was taken. If the action is set aside the employee will be entitled to have restored any rights or benefits or salary, in whole or in part, which have been denied as a result of the action appealed from. If the action taken is modified the Commission shall issue such orders as are necessary to carry out the decision of the Commission.
C. Within five days after the Commission has rendered its decision, the Director shall mail a copy of the findings and decision to the petitioner and the appointing authority. If either the petitioner or the appointing authority was represented by counsel, mailing a copy of the findings and decision to that counsel will constitute compliance with this provision.
D. The Commission’s decision shall be final when rendered and shall be binding upon the Board of Supervisors, elective officials, boards and commissions, and all employees in the service of the County.
E. Except upon petitioner’s request to the Commission, hearing board or hearing officer for an open hearing, appeal hearings shall be conducted in closed session, and not open to the public. For any hearings conducted in closed session, the action taken or adopted by the Commission shall be reported out in open session, but the written decision and findings of fact shall not be made public by the Commission. (
SECTION 18. REPORT OF HEARINGS: Hearings on dismissals, demotions, or suspensions in excess of five days, shall be conducted with a stenographic reporter. The Commission, hearing board, or hearing officer may order that other hearings be reported by a stenographic reporter, or recorded by electronic means, if it deems such reporting or recording advisable or necessary.
SECTION 19. TRANSCRIPTS OF HEARINGS: Any legally interested person may obtain a transcript or recording of any hearing that has been reported or recorded by making independent arrangements with the reporter or recorder for the preparation thereof and assuming the cost of such preparation.
SECTION 20. CONTINUANCES: The Commission, hearing board, or hearing officer may grant a continuance of any hearing upon such terms and conditions as it deems proper. Any request for a continuance made less than forty-eight hours prior to the time set for the hearing shall be denied unless good cause is shown for the continuance.
SECTION 21. AMENDMENT OF CHARGES: At any time, but not less than ten days before the hearing, the appointing authority may serve on the employee and file with the Commission an amended or supplemental statement of charges. If the amended or supplemental charges present new causes for disciplinary action the employee shall be afforded a reasonable time in which to prepare a defense and to submit a further response to address the new causes.