(a)
Any applicant
or employee in the competitive service shall have the right to appeal
to the Commission relative to any violations of the Civil Service
Rules and Regulations, acts of discrimination, non-merit employment
actions, conditions of employment or employment status, except in
instances where the right of appeal is prohibited by the Civil Service
Act or these rules.
(b)
It shall
be the duty of the Director of Human Resources to inform each Commission
member and the appointing authority or other persons complained against
of the filing of the complaint or request.
(c)
Such appeal
must be filed with the City Clerk within 10 work days of the alleged
violation.
(Amended by Resolution CSC 05-005, 01/06/05)
A permanent employee, if discharged, demoted, or reduced in
pay, may submit a written appeal to the Commission following receipt
of the written notice of discharge, demotion, or reduction in pay.
Such appeal must be filed within 10 days of receipt of such notice.
It shall be the duty of the Personnel Officer to inform each Commission
member and the appointing authority of such appeal.
When the employee is entitled to a hearing, the Commission shall
schedule a hearing on the action pursuant to the procedures set forth
in these rules and regulations.
(a)
The Civil
Service Commission shall set a time and place for the hearing. Notice
shall be served personally or by registered or certified mail on the
parties to the appeal not less than 30 days before the hearing. Appearance
at the hearing waives the right to notice.
(b)
The employee
shall be entitled to appear personally, by counsel or a designated
representative; to produce evidence; to present and cross examine
witnesses; to testify under oath or affirmation; and to argue the
case. The appointing authority or complainant shall be entitled to
the same privileges.
(c)
The appeal
shall be heard by the Civil Service Commission, a designated commissioner,
or upon agreement of the parties and a majority of the Commission,
a hearing officer appointed by the Commission.
(d)
If a hearing
officer is to hear the appeal, the Commission shall request from the
State Conciliation and Mediation Service a list of five qualified
hearing officers. The list shall be submitted to the employee and
the City. Each may reject or disqualify one name by filing with the
Commission the rejection or disqualification, in writing, within five
days. The Commission shall appoint a hearing officer from those names
remaining.
(a)
Appellant
shall identify the issues raised on appeal and shall provide a list
of these issues to the Civil Service Commission or hearing officer
and the City's representative at the time the appeal is filed.
(b)
Either party
shall have the right to demand in writing that the other party provide
a list of witnesses it intends to call, designating which witnesses
will be called as expert witnesses, and list of documents it intends
to introduce at the hearing. Such demand shall be served personally
or by registered or certified mail on the opposing party no less than
20 days prior to the date of hearing. Copies shall be filed with the
Civil Service Commission or the hearing officer.
(c)
Each party
shall serve such respective lists on the other party personally or
by registered or certified mail no less than 10 days prior to the
date of the hearing. Copies shall be filed with the Civil Service
Commission or the hearing officer.
(d)
Listed documents
shall be made available for inspection and copying at reasonable times
and places prior to the hearing.
(e)
Time limits
provided herein may be waived by mutual agreement of the parties.
(f)
The failure
to list a witness or a document shall not bar the testimony of an
unlisted witness or the introduction of an undesignated document at
the hearing, provided that good cause for omission from the requirements
of paragraphs (b) and (c) is shown, as determined by the Civil Service
Commission or the hearing officer.
(g)
Before the
hearing has commenced, the chairperson or the hearing officer shall
issue subpoenas and subpoenas duces tecum at the request of any party
for attendance or production of documents at the hearing. Compliance
with the provisions of Section 1985 of the Code of Civil Procedure
shall be a condition precedent to the issuance of the subpoena duces
tecum. After the hearing has commenced, the chairperson or the hearing
officer may issue subpoenas and subpoenas duces tecum.
(a)
If the Civil
Service Commission hears the appeal, it may utilize the services of
its counsel in ruling on the admission or exclusion of evidence and
on questions of hearing procedure, and shall exercise all powers relating
to the conduct of the hearing.
(b)
If a hearing
officer is appointed by the Civil Service Commission, the hearing
officer shall rule on the admission and exclusion of evidence and
on questions of hearing procedure, and shall exercise all powers relating
to the conduct of the hearing except as otherwise provided by this
rule.
(c)
The personal
presence of the employee shall be required at all hearings except
when excused by the Civil Service Commission or the hearing officer
upon good cause shown. Unexcused absence may be deemed a withdrawal
of the appeal and consent to the action or ruling from which the appeal
was taken.
(d)
The parties
to the hearing are entitled to be heard, to present evidence and to
examine and cross-examine witnesses appearing at the hearing. The
testimony of witnesses shall be given under oath or affirmation.
(e)
The hearing
shall be formal, but need not be conducted according to technical
rules relating to evidence and witnesses. Only relevant evidence shall
be admitted and only if it is the type of evidence on which responsible
persons are accustomed to rely in the conduct of serious affairs.
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 objections as in civil actions. Irrelevant and repetitious evidence
shall be excluded. Oral evidence shall be taken only under oath or
affirmation.
Exhibits shall be marked and numbered. Exhibits, when offered
by either party, may be received in evidence by the chairperson or
hearing officer. The names of all witnesses and exhibits in order
received shall be made a part of the record.
(f)
If the Civil
Service Commission or the hearing officer intends to base a decision
upon information not obtained at the hearing, the information shall
be disclosed to all parties to the hearing and the parties shall have
an opportunity to respond to it.
(g)
Members
of the Civil Service Commission or the hearing officer may ask questions
of witnesses to the hearing. However, representatives of each party
or parties to the hearing are limited to one further round of examination
and cross-examination in response to such questions. Questioning shall
be strictly limited to specific matters asked by members of the Civil
Service Commission or the hearing officer.
(h)
In hearings
on disciplinary matters the City shall present its case first and
shall present its closing arguments last. There shall be no rebuttal.
In other hearings or investigations, the order of presentation shall
be determined at the discretion of the Civil Service Commission or
hearing officer.
(i)
In disciplinary
hearings, the burden of proof shall be on the appointing authority.
(j)
The Civil
Service Commission or the hearing officer may, in the exercise of
discretion and upon request of either party, exclude witnesses not
presently under examination except parties, the designated representative,
the appointing authority, the Director of Personnel or a designated
representative and legal counsel.
(k)
The Civil
Service Commission or the hearing officer may, on request of a party
or on its own motion, for good cause shown, exercise its discretion
to grant reasonable continuances.
(a)
If the matter
is heard by the Commission, the Commission shall affirm, modify, or
vacate, in whole or in part, the challenged action to the extent permitted
by the Charter.
(b)
If the matter
is heard by a hearing officer, the hearing officer shall, within 10
days of the close of the hearing, prepare Findings of Fact and Recommendations
to the Commission to affirm, modify, or vacate, in whole or in part,
the challenged action as permitted by the Charter in such form that
it may be used by the Commission in reaching its decision in the case.
A copy of the Findings of Fact and Recommendations shall be filed
by the Commission as a public record and furnished to each party within
10 days after filing by the Commission. The Commission shall affirm,
modify, or vacate, in whole or in part, the challenged action to the
extent permitted by the Charter.
(c)
In arriving
at a decision on the propriety of the penalty imposed, the Commission
or the hearing officer may consider the records of any relevant prior
proceedings against the employee in which a personnel action was ultimately
sustained and any records contained in the employee's official personnel
files, providing such proceedings and records were introduced into
evidence at the hearing.
(d)
The final
decision of the Commission shall be in writing and shall contain findings
of fact and the personnel action approved, if any. The findings may
be stated in the language of the pleadings or by reference thereto.
(e)
The final
decision of the Commission shall be filed with the City Clerk as a
public record and served personally or by registered or certified
mail upon the parties within 10 days of the conclusion of the hearing,
if heard by the Commission, or within 10 days of the Commission's
action on the hearing officer's Findings of Facts and Recommendations.
(f)
The final
decision of the Civil Service Commission shall be certified to the
appointing authority from whose action the appeal was taken and shall
forthwith be enforced and followed by the appointing authority.
