CIVIL SERVICE RULES

General | Definitions | Hearing | Discrimination Appeals | Investigations | Amended or Supplemental Notice of Disciplinary Action | Service of Notice, Paper, or Other Document | Appeal | Objections to Notice of Disciplinary Action | Continuances | Discovery | Privileged Communications | Request for Admission of Facts andGenuineness of Documents | Depositions Upon Oral Examination | Petition to Compel Discovery and Proceedingsand Sanction Thereon | Decision | Exclusion of Witnesses | Rehearing | Finality of Decision | Effect of Failure to Apply for Rehearing | Attorney Fees in Disciplinary Actions | Perpetuation of Proceeding | Commencement of Action | Judicial Review | Prohibition Against Reprisal Action

Rule Thirteen
APPEAL AND HEARING PROCEDURE

1301. General.

All hearings and investigations authorized by the initiative ordinance shall be governed by the initiative ordinance and by rules of practice and procedure adopted by the Commission. It is the intent of these rules that the conduct of any hearing or investigation shall be as informal as possible, and any informality in any proceeding or in the manner of taking testimony shall not invalidate any order, decision or rule made, approved or confirmed by the Commission. Employees shall be free from reprisals or other punitive actions for availing themselves of the appeal procedures.

1302. Definitions.

Unless the context requires otherwise, the definitions immediately hereinafter set forth govern the construction of this Rule.

Appeal: Any written request for relief from disciplinary or alleged discriminatory action.

Appellant: The person filing an appeal with the Commission.

Hearing Officer: An attorney at law admitted to practice before the courts of this state for at least five (5) years prior to his appointment by the Commission.

Investigation: An investigation which the Commission may consider desirable concerning the administration of personnel or conditions of employment in the County service.

Respondent: The person or County department whose disciplinary action is challenged by the appellant.

1303. Hearing.

Following the acceptance of an appeal, the Commission shall commence a hearing on an appeal of a disciplinary action within twenty (20) calendar days after the next regularly scheduled Civil Service Commission meeting. unless otherwise waived by both parties. The appellant may appear personally, produce evidence, and have counsel and a public or a closed hearing as mutually agreed upon. At the conclusion of the hearing, the Commission shall affirm, modify, or revoke the order.

The Commission may, however, at its discretion assign any hearing under this section to a duly qualified hearing officer who shall conduct a hearing pursuant to these rules, and upon conclusion prepare a proposed decision pursuant to §1316.

a. The Commission shall proceed informally and not be bound by formal procedures and rules of evidence, except where required by the Administrative Procedures Act (California Government Code Sections 11370, et seq.) At any hearing or investigation, the Commission shall have the power to require, by subpoena, the attendance of witnesses and the production of books and papers relevant to the hearing or investigation.

b. Oaths. Each Commissioner or the hearing officer if so delegated shall have the power to administer oaths to such witnesses.

c. Hearing Officer. The Commission shall employ a hearing officer to act as the presiding officer in all cases involving appeals from disciplinary action unless otherwise agreed upon.

d. Subpoenas. Subpoenas shall be signed and obtained from the Secretary of the Civil Service Commission.

e. Pre-Hearing Conference. In cases involving more complex or serious disciplinary actions, the Commission shall, at its discretion, order that a pre-hearing conference be held to be attended by the appellant's representative, a representative of the County and a hearing officer designated by the Commission. At such pre-hearing conference the hearing officer shall meet with the parties to narrow the issues, disclose the names of witnesses to be used by each side, list and mark documents to be used in evidence and to the extent possible discuss settlement.

In the event the Commission does not order a pre-hearing conference, the hearing officer may at his discretion or upon the request of a party and with the consent and approval of the Chairperson of the Commission order that a prehearing conference be held.

f. Motion to Terminate Proceeding. Where any party objects to an accusation on the ground that it does not state acts or omissions upon which the Commission may proceed, the Commission may, at its discretion, hold a hearing to decide that issue, and if it decides affirmatively, may dismiss that portion or all of the action pertaining to those acts or omissions.

1304. Discrimination Complaints.

Persons alleging discrimination under County Code Section 27-30 and Civil Service Rule Five shall have the right to challenge the alleged discrimination at a hearing before the Commission, but shall first file the complaint with the County Affirmative Action Officer, who shall perform an investigation and file a factual report with the Commission within ninety (90) days. Persons retain the right to pursue an appeal directly to the Civil Service Commission following the report from the County Affirmative Action Officer or in the event the County Affirmative Action Officer does not acknowledge the complaint within thirty (30) days or does not file a report within ninety (90) days. The Commission shall consider accepting the complaint at its next Commission meeting, and if accepted, a hearing shall be set within 20 calendar days. Rule 1303 shall govern the procedures for discrimination hearings by the Commission.

1305. Investigations.

An informal method by the Commission of inquiring into the administration of personnel or conditions of employment in County service. The Commission shall have the power to subpoena and require the attendance of witnesses and the production thereby of documents to the investigation. Such investigation shall be considered non-adversary, and witnesses shall not be required to testify under oath. The parties shall not be represented by counsel except that an employee organization representative may be present and participate in the investigation. Any findings, conclusions or recommendations may be reported to the Board of Supervisors and the Administrative Officer.

Before the Commission considers a request for an investigation or grants such a request, it is recommended that the employee attempt to affect a resolution of the problem at the departmental level. Before the Commission grants such an investigation, the department(s) which is (are) affected shall be served with a request for investigation and with a written notice setting forth the date, time, and location where the Commission will hear the request or motion for an investigation. Service shall be made on the department head by mail no later than 15 days or personally delivered no later than 5 days before the date the Commission will consider the request on motion for investigation.

1306. Amended or Supplemental Notice of Disciplinary Action.

At any time before an employee's appeal is submitted to the Commission or its authorized representative for decision, the appointing authority may, with the consent of the Commission or its authorized representative, serve on the employee and file with the Secretary of the Commission, an amended or supplemental Notice of Disciplinary action. If the amended or supplemental Notice presents new causes or allegations, the employee shall be afforded a reasonable period of time to answer and to prepare a defense thereto. Any new causes or allegations shall be deemed controverted and any objections to the amended or supplemental causes or allegations may be made orally at the hearing or investigation and shall be noted in the record.

1307. Service of Notice, Paper, or Other Document.

Whenever any notice, paper, or other document, except a subpoena, is directed to be given to or served upon any person or County department, such notice, paper, or document may be personally served or it may be served by mail to the last known residence or business address of the addressee. Unless otherwise specifically provided in these Rules, the giving of notice of matters to be heard or considered by the Commission shall be governed by Commission rule. Service by mail of the charges in a disciplinary proceeding, the notice of an employee suspension, and the notice of a probationer's rejection, is made by the enclosure of such charges or notice in a sealed envelope, addressed to the last known address of the person to be served, certified with return receipt requested, and the depositing of it in the United States mail with postage fully prepaid. Service is complete on mailing. Service by mail of any other notice, paper, or document is made in the manner provided by the Code of Civil Procedure, Sections 1012 and 1013, and any amendments and successors thereto. Proof of service, either personally or by mail, shall be made by declaration under penalty of perjury.

1308. Appeal.

No later than ten (10) working days after service of the Notice of Disciplinary action, the employee affected may file with the Secretary of the Commission c/o County Personnel Department, a written admission or denial of the material allegations of the Notice of Disciplinary Action. The answer shall include a request for hearing as provided in these Rules. Upon filing of a request for a hearing by an employee, the Personnel Director shall make available to the Secretary of the Commission, the Notice of Proposed Disciplinary action and the Notice of Disciplinary Action. With the consent of the Commission or its authorized representative, an amended answer may subsequently be filed. If the employee affected fails to answer within the time specified, or after answer, withdraws his appeal, the disciplinary action taken by the appointing authority shall be final. A copy of the employee's answer and of any amended answer shall promptly be filed with the Personnel Director and with the appointing authority. 'Working days' for purposes of this section shall mean Monday through Friday. If the last day for filing an answer falls on a holiday on which the County Personnel Department is closed, then the filing deadline shall be extended to the next day the County Personnel Department is open for business.

Upon receipt of an appeal, the secretary of the Commission in conjunction with the Chair of the Commission and the Commission’s legal counsel shall ascertain if the appeal is (1) an appealable action under the Civil Service rules, and (2) has been timely filed with the Commission. If so advised, the secretary shall accept the appeal on behalf of the Commission, assign a hearing officer to the appeal and notify the parties of the acceptance and assignment of the hearing officer. If the Commission’s legal counsel advises that the request is not a proper appeal, the matter shall be scheduled before the Commission at its next regular meeting to consider whether it has jurisdiction to accept the appeal.

1309. Objections to Notice of Disciplinary Action.

The employee affected may file with the Secretary of the Commission objections to the Notice of Disciplinary Action on the following grounds:

a. It does not state acts or omissions upon which the Commission may proceed;

b. The form of the Notice of Disciplinary Action is so indefinite or uncertain that he cannot identify the transaction or prepare his defense; or

c. Presentation of new matter by way of defense.

d. The employee may also plead by way of confession and direct the Commission to any mitigating and extenuating circumstances.

Objections to the Notice of the Disciplinary Actions shall be part of the answer in Section 1308.

1310. Continuances.

The parties may stipulate for a continuance of the proceeding or a party may apply to the Commission for continuance for good cause shown, or the Commission on its own for good cause may continue said proceedings.

1311. Discovery.

After initiation of an appeal in which an appellant or other party is entitled to a hearing on the merits, a party, upon written request or written interrogatories made to another party, prior to the calling of the first witness and within ten (10) calendar days after filing of an appeal, is entitled to:

a. Obtain the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing; and

b. Inspect and make a copy of any of the following in the possession or custody or under the control of the other party:

1. A statement of a person, other than the respondent, named in the initial administrative pleading, or any additional pleading, when it is claimed that the act or omission of the respondent as to such person is the basis for the appeal ;

2. A statement pertaining to the subject matter of the appeal made by any party to another party or person;

3. Statements of witnesses then proposed to be called by the party and of other persons having personal knowledge of the acts, omissions, or events which are the basis for the appeal not included in 1 or 2 above;

4. For the purpose of this Rule, "statements" include written statements by the person, signed or otherwise authenticated by him, stenographic, mechanical, electrical, or other recordings, or transcripts thereof, of oral statements by the person and written reports or summaries of such oral statements.

Upon a showing of good cause, the time in which to complete discovery may be extended for a reasonable period of time.

1312. Privileged Communications.

Nothing in these Rules shall authorize the inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential or protected as attorney's work product.

1313. Request for Admission of Facts and Genuineness of Documents.

After initiation of an appeal in which an appellant or other party is entitled to a hearing on the merits, a party may, upon written request made to another party within ten (10) calendar days after filing of an appeal, file and serve upon such party a request for the admission of the genuineness of any relevant documents described in the request or the truth of any relevant matters of fact set forth in Section 2033 of the California Code of Civil Procedure.

1314. Depositions Upon Oral Examination.

Any party to appeal may take a deposition of any person upon oral examination in accordance with the provisions of the California Code of Civil Procedure, Section 2019, within ten (10) calendar days after filing an appeal.

1315. Petition to Compel Discovery and Proceedings and Sanction Thereon.

Any party claiming his request for discovery pursuant to Sections 1311, 1313, or 1314, has not been complied with, may serve and file with the Secretary of the Commission a verified petition to compel discovery naming the party refusing or failing to comply with Sections 1311, 1313, or 1314. The petition shall state facts showing a party failed or refused to comply with the particular discovery Rule, a description of the matters sought to be discovered, the reason or reasons why such matter is discoverable under that Rule, and the ground or grounds of the refusal so far as known to petitioner.

The petition shall be served upon all parties and filed within five (5) days after a party first evidenced his failure or refusal to comply with Sections 1311, 1313, or 1314. If from a reading of the petition, the hearing officer is satisfied that the petition sets forth good cause for relief, the hearing officer shall issue an order to show cause; otherwise, the hearing officer shall enter an order denying the petition. The order to show cause shall be served upon all parties in the appeal by personal delivery or certified mail and shall be returnable not later than five (5) days from its issuance. Parties shall have the right to serve and file a written answer or other response to the petition and order to show cause.

The appeal shall be stayed during the pendency of the proceedings described in this section, only if the hearing officer issues an order to show cause.

Where the matter sought to be discovered is under the custody or control of the refusing party and said party asserts that such matter is not a discoverable matter under the provisions of Section 1315 or is privileged against disclosure under such provisions, the hearing officer may order disclosure of such matters as are provided in subdivision (b) of Section 915 of the Evidence Code and examine such matters in accordance with the provisions thereof.

The order of the hearing officer shall be final and not subject to review by appeal. A party aggrieved by such order, or any part thereof, may within five (5) days after service of the order, serve and file in the Superior Court, a petition for writ of mandamus to compel the hearing officer to set aside or otherwise modify his order.

Where the hearing officer finds that a party or his attorney failed or refused to comply with Sections 1311, 1313, or 1314 without substantial justification, and a petition has been filed to compel discovery pursuant to this Rule, the hearing officer may award costs and reasonable attorney's fees to the opposing party.

All sanctions available under California Code of Civil Procedure, Section 2034, that are not inconsistent with this Rule are available to any party to the administrative proceeding.

1316. Decision.

In all cases referred or assigned to a hearing officer by the Commission for hearing or investigation by him, he shall prepare a proposed decision in such form that it may be adopted as the decision in the case. The proposed decision shall include findings of fact which may be stated in the language of the pleadings or by reference to them. A copy of the proposed decision shall be filed with the Commission as a public record. The hearing officer may be present during the consideration of the case by the Commission and, if requested, shall assist and advise the Commission. Upon the filing of a proposed decision, the Commission may adopt it in its entirety, or may reduce the disciplinary actions set forth therein and adopt the balance of the proposed decision, or may itself decide the case upon the record, including the transcript with or without taking additional evidence or additional argument or may refer the case to the same or another hearing officer, to take additional evidence. If the case is re-referred to a hearing officer, he shall similarly prepare a proposed decision as above provided, upon the additional evidence taken and the transcript and other papers making up the record of the prior hearing, which nay be adopted by the Commission as filed.

1317. Exclusion of Witnesses.

On the motion of any party, including the parties to a disciplinary proceeding, the Commission or the hearing officer in his discretion, may exclude from the hearing room any witnesses not at the time under examination; but a party to the proceeding or his designee in lieu thereof, or his counsel cannot be excluded.

1318. Rehearing.

Within five (5) days after service on him of a copy of the decision any party including the employee or the appointing authority may apply for a rehearing by filing with the Commission a written petition therefor. Within ten (10) days after such filing, the Commission shall cause a copy of the petition for rehearing to be served upon the other parties to the proceeding.

Within twenty (20) days after such service of the petition for rehearing, the Commission, itself, shall either grant or deny the petition in whole or in part. Failure to act upon a petition for rehearing within this twenty-day period is a denial of the petition. The days shall be computed on a calendar basis. If a rehearing is granted, the Commission may rehear the case itself on the record of the prior hearing and such additional evidence and argument as may be permitted, or it may refer it to a hearing officer. A case so referred to a hearing officer shall be subject to the procedure provided in Sections 1303 and 1316 above.

1319. Finality of Decision.

Unless a proper application for rehearing is made, every decision shall become final five (5) days after service by the Commission of a copy of such decision upon the parties to the proceeding in which the decision is rendered.

1320. Effect of Failure to Apply for Rehearing.

The right to petition a court or writ of mandate shall not be affected by the failure to apply for rehearing by filing written petition therefor with the Commission.

1321. Attorney Fees in Disciplinary Actions.

If the appellant is found innocent of all charges, he shall be restored forthwith to his previous position and status with all rights and privileges pertaining thereto and with full back pay for time lost, and the County shall also pay attorney fees, where an attorney was employed by the appellant, in an amount not to exceed the amount allowed by the Municipal Courts in the County for court-appointed counsel in contested trials in criminal actions. Such payment shall be restricted to permanent employees who avail themselves of such counsel for appeal of disciplinary action only.

1322. Perpetuation of Proceeding.

The proceedings at the hearing shall be reported by a machine, shorthand, phonographic reporter, or otherwise perpetuated by mechanical, electronic, or other means capable of reproduction or transcription. The means of reporting shall be at the discretion of the Commission or their authorized representative.

1323. Commencement of Action.

No action or proceeding shall be brought by any person having or claiming to have a claim of action or complaint or ground for issuance of any complaint or legal remedy for the wrongs based on or related to the Santa Barbara County Civil Service Law or the administration thereof unless such action or proceeding is commenced and served within one hundred (100) days after such cause of action or complaint first arose.

1324. Judicial Review.

Judicial review may be had by filing a petition for a writ of mandate.

Code of Civil Procedure §1094.6 as it may be amended from time to time shall be applicable to the judicial review of Civil Service Commission decisions.

The Commission shall make available to the petitioner at petitioner's expense the complete record of the proceedings, and in the case of proceedings which exist on a tape or other electronic record, may satisfy this obligation by providing a duplicate copy of the tape or other record.

The right to petition shall not be affected by the failure to seek reconsideration before the Civil Service Commission.

1325. Prohibition Against Reprisal Action.

The rights of County officers and employees to petition and appear before the Civil Service Commission shall not be infringed.

No manager or supervisor shall take reprisal action through any act of intimidation, restraint, coercion, discrimination, or other adverse employment decision against any employee or applicant for employment who seeks redress before the Commission or who requests the Commission pursuant to Civil Service Rule 1305 to conduct an investigation into departmental personnel practices or employment conditions. Nor shall any reprisal action be taken against any employee duly called to testify before the Commission on any matter.

This section is not intended to prevent managers and supervisors from taking any personnel action affecting an employee or applicant for employment based on causes apart from the employee's or applicant's petition to and/or appearance before the Commission. Nor is it intended to authorize employees who appear before the Commission on their own behalf to be paid for the time spent away from the work site.

Further, this section is not intended to prevent a manager or supervisor from taking appropriate personnel action when evidence shows any of the following:

(1) The employee has disclosed information that he or
she knows to be false or has disclosed information with
intentional disregard for the truth or falsity thereof.

(2) The employee has unlawfully disclosed confidential
information from records which are closed to public inspection pursuant to law.

(3) The employee has unlawfully disclosed information
which is confidential under any other provision of law.

For the purposes of this rule, "supervisor" shall mean any employee, regardless of job description or title, having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees, or responsibility to direct them or to adjust their grievances, or effectively to recommend this action, if in connection with the foregoing, the exercise of the authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

An employee alleging reprisal under this rule may appeal to the Commission pursuant to Rule 1301.

If after a hearing of an appeal of unlawful reprisal, the Civil Service Commission determines that a violation of Rule 1325 has occurred, the Commission may initiate any appropriate relief, including, but not limited to, reinstatement, back pay, restoration of lost service credit, or if appropriate, the expungement or correction of an adverse record of the county employee or applicant for county employment who was the subject of the alleged acts of misconduct prohibited by Rule 1325, or any other corrective action to reverse the reprisal and its effect.