DPA - Legal - Non-Merit Statutory Appeals Hearing Procedures


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	[Reprint of Information Pamphlet, July 1998] This pamphlet is intended to assist an employee (appellant) in preparing for a non-statutory merit appeals hearing before the Department of Personnel Administration (DPA). It sets forth the hearing procedures, consistent with Government Code section 11425.10. It also provides general information regarding appeals pending before DPA. The information provided in this pamphlet is not intended to substitute for the advice an appellant may receive from an attorney or representative. Please carefully read this pamphlet and all other documents you receive regarding your appeal. Table of Contents Legal Authority General Authority Specific Authority Hearing Procedures Filing an Appeal Bringing a Case to Hearing Appearing at a Hearing Evidence Investigations General Information Hearing Notices Representation Subpoenas Inability to Appear Failure to Appear Settlement Special Needs Other Questions Telephone Numbers LEGAL AUTHORITY DPA has statutory authority to hold hearings and/or conduct investigations of the following: Requests for Reinstatement after Automatic Resignation (AWOLs), Requests for Reinstatement after AWOL of Permanent-Intermittent (PI) Employees, Appeals from Layoff and Demotions in Lieu of Layoff, Protests of Geographic and Non-Geographic (Involuntary) Transfers, Petitions to Set Aside Resignations, Appeals from Denial of Merit Salary Adjustments (MSAs) and Appeals of Performance Appraisals. Its hearings are handled by a Labor Relations Counsel Hearing Officer (hearing officer) assigned to Statutory Appeals. Following is a list of the Government Code sections and DPA Rules applicable to these appeals. For represented employees there may be variations in a Memorandum of Understanding (MOU) which control.P> GENERAL AUTHORITY DPA derives its hearing authority from Title 2, Division 5, Part 2.6 of the Government Code, set forth at sections 19815 and following, as implemented by Title 2, sections 599.600 through 599.995 of the California Code of Regulations (hereafter DPA Rules). General procedures for hearings are set forth at DPA Rules 599.894 through 599.910, and procedures for hearings of excluded employees are set forth at DPA Rule 599.859. These statutes and regulations are supplemented by the Administrative Procedures Act (APA) (Government Code sections 11370 through 11529) to the extent that the APA is not conflicting or inconsistent (Government Code section 11415.10 and 11415.20). SPECIFIC AUTHORITY Reinstatement after AWOL: Gov. C. secs. 19996.2, 19842.5 (PI) Layoff or Demotion: Gov. C. secs. 19997-19997.14, 19816.2, 19837, 19996.21; DPA Rule 599.845 Involuntary Transfer: Gov. C. secs. 19994-19994.4, 19841 Set Aside Resignation: Gov. C. secs. 19996.1 Denial of MSA: Gov. C. secs. 19832-19835.5; DPA Rule 599.684* Performance Appraisal: Gov. C. secs. 19992-19992.4; DPA Rule 599.798* Denial of MSA and Performance Appraisal (Managers and Supervisors): Pursuant to DPA Rules 599.799.1 and 599.799.2, these actions are grievable only under Rule 599.859. HEARING PROCEDURES* FILING AN APPEAL: The DPA Rules provide that appeals must be in writing and must state the basis and the relief requested. They must be filed with DPA within 30 days after an appellant has been served, or if no notice is served, within 30 days after the event generating the appeal (another time frame is set forth in the applicable section of the Government Code). One exception is the time for appeal for reinstatement after AWOL. A request for reinstatement after AWOL resignation must be filed within 15 days of the service of the notice of separation. In some instances, the time for filing an appeal may be extended for up to 30 days when good cause for the late filing is found. Unless otherwise determined by DPA, every allegation in the appeal is considered at issue. BRINGING A CASE TO HEARING: Every appeal must be brought to hearing within three years unless the parties agree otherwise in writing and submit a copy of that writing to DPA. The Government Code provides that DPA may hold administrative hearings and/or investigations when an appeal is filed. When hearings are held, the parties are entitled to subpoena witnesses to testify and gather and present documents as evidence at the hearing. Any documents presented at the hearing should be copied ahead of time (in triplicate) and presented to your employer's representative and the hearing officer before they can be offered as evidence at the hearing. How you obtain subpoenas is discussed under the section entitled GENERAL INFORMATION, below. APPEARING AT A HEARING: The witnesses appearing at the hearing will be placed under oath and will be expected to testify truthfully. They will be examined and cross-examined by you or your representative and by your employer's representative. Their testimony will be tape-recorded. Consistent with the law, you will be responsible for putting on your evidence first. Your employer's representative will put on your employer's case next. Either side may call rebuttal witnesses, subject to the hearing officer's approval. Both sides must submit all their evidence to the hearing officer, before the hearing officer closes the record. There will be no opportunity to submit documents or testimony after the record is closed. EVIDENCE: Oral evidence will be taken only on oath or affirmation. Following is a brief explanation of how that evidence will be handled by the ALJ. Each party will be given the right to call and examine witnesses, to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him or her to testify; and to rebut the evidence against him or her. The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence will 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 which might make improper the admission of the evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection will not be considered sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The ALJ has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time. INVESTIGATIONS: Some matters are not entitled to a full evidentiary hearing. Some may be handled by investigation. An appellant's rights may be controlled by an MOU between the appellant's union and the State. If that is the case, you should carefully read the MOU for your bargaining unit. GENERAL INFORMATION HEARING NOTICES: Shortly after you file your appeal, you will receive a Notice of Time and Place of Hearing. You should review it carefully. If the notice contains any incorrect information, call DPA - Statutory Appeals immediately so that it can be corrected. If you change your address, you should also notify DPA - Statutory Appeals immediately. REPRESENTATION: The hearing process is designed to allow you to act as your own representative, if you choose to do so. You may also choose to have an attorney or other representative act on your behalf. If you select an attorney or representative, you should notify DPA - Statutory Appeals and your employer's representative immediately. By notifying them you will ensure that all further communications are also sent to that attorney or representative. SUBPOENAS: If you need subpoenas to secure witnesses for the hearing, you should contact DPA's Statutory Appeals Secretary and request them. She will mail them to you. You should allow sufficient time before your hearing to obtain the subpoenas and serve them on your potential witnesses. Read the subpoena form carefully. When you serve a subpoena on a witness, he/she may ask you to pay witness fees and mileage traveled. If the witness asks for these fees, you are required to pay them, as provided by law. INABILITY TO APPEAR: If you cannot be present at the time and place set for hearing, you will be required to demonstrate good cause to have the matter continued, consistent with the law. In order to obtain a continuance, you should first contact your employer's representative to see if he/she agrees and to determine his/her future availability. Then you should submit a request to the hearing officer at DPA. You may be required to put your request in writing, telling the hearing officer the reason you need a continuance and whether your employer's representative agrees to your request for a continuance. FAILURE TO APPEAR: If you do not have a continuance and you do not appear at the hearing, the hearing officer has the discretion to treat your failure to be present and ready to proceed as an abandonment (withdrawal) of your appeal. Should that occur, your employer's action will be final. SETTLEMENT: You may want to consider settlement of your appeal. When you appear at the hearing, the hearing officer will ask you if you have had an opportunity to discuss settlement. If you have not, he/she will provide you time to discuss settlement with your employer's representative before the hearing begins. If you do not settle, a hearing will be held. You should expect your hearing to last approximately three to four hours. SPECIAL NEEDS: If you need a sign language interpreter or language assistance, you should notify DPA immediately so that one can be arranged. Hearing locations are accessible to persons with disabilities. However, if you or a witness have a special need that requires reasonable accommodation, you should contact DPA to verify that the type of accommodation required can be arranged. REQUEST FOR REHEARING: DPA Rules provide you with the opportunity to request a rehearing with DPA. A (written) petition for rehearing may be filed no later than 30 days after the decision is served on you. If you request a rehearing, a copy of your request will be sent to your employer. Unless a timely request for rehearing is made, the decision becomes final 30 days after service upon you. If DPA does not act on your request for rehearing within 90 days, you may consider it denied and the original decision becomes final. Any request for rehearing should be mailed to DPA - Statutory Appeals, 1515 "S" Street, Suite 400 N, Sacramento, CA 95814. OTHER QUESTIONS: If you have any questions regarding your appeal or the hearing process, you should contact DPA - Statutory Appeals at the numbers listed below. All communications which you received from DPA will include a case number assigned to you. If you contact DPA, be prepared to provide the case number to the person assisting you. TELEPHONE NUMBERS FOR ASSISTANCE GENERAL INFORMATION CALENDARING, CONTINUANCES (916) 324-3857 or CNET 8-454-3857 STATUS OF APPEALS, REQUESTS FOR TRANSCRIPTS, TAPE RECORDINGS, ADMINISTRATIVE RECORD (916) 323-3867 or CNET 8-473-3867 FAX LINE (SHARED) (916) 323-4723 or CNET 8-473-4723 TDD LINE (916) 327-4266 or CNET 8-467-4266 TDD is a telecommunication device for the deaf and hearing impaired. It is reachable only from telephones with such a device. DPA complies with the Americans with Disability Act (ADA). Alternative formats for this pamphlet will be made available upon request. July 1998

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