(a) Request for Appeal.

(1) An employee who has been demoted or discharged and has completed the final grievance and appeal procedure step applicable to the employee may appeal to a Trial Board or to an Administrative Law Judge by submitting a written request for appeal to the Secretary of the Civil Service Board within 10 calendar days of the date the employee received notice of the last disposition of the employee's appeal. The request must contain all of the information required in Section 34-38, (e), and must state whether the employee wants the appeal heard before a Trial Board or before an Administrative Law Judge, which choice is final upon submission of the request to the Civil Service Board Secretary.

(2) By choosing to have a hearing before an Administrative Law Judge, an employee agrees to pay one-half of the Administrative Law Judge's fee for the hearing, based on a rate established by contract with the city. Before a hearing will be held before an Administrative Law Judge, the employee must deposit with the Civil Service Board Secretary a cash amount equal to one-half of the estimated fee of the Administrative Law Judge as determined by the Civil Service Board based on the estimated length of the hearing. If the deposit exceeds the actual cost of the hearing, the employee shall be refunded the difference. If the deposit is insufficient to cover the actual cost of the hearing, the employee must pay the additional amount.

(b) Selection of the ThaI Board and the Administrative Law Judge.

(1) The Civil Service Board Secretary shall select Trial Board members or an Administrative Law Judge according to a rotation schedule established by the Chair of the Civil Service Board. The Trial Board shall be composed of members as required in the City Charter; except that an adjunct member of the Civil Service Board may not serve on the same Trial Board with another adjunct member nominated by the same City Council member. The Civil Service Board Member shall serve as Chair of the Trial Board and is responsible for maintaining order and decorum and, unless overruled by a vote of the two adjunct members, ruling on the admissibility of evidence during a Trial Board hearing. The Civil Service Board Secretary shall serve as Secretary to the Trial Board and to the Administrative Law Judge.

(2) Neither the appellant, the city, nor a representative of either shall communicate with members of the Trial Board or with the Administrative Law Judge outside of the hearing except through the Secretary and only then with notice to the opposing party of the nature and intent of the communication.

(c) Hearing Date.

(1) A hearing must begin within 60 calendar days of the date the Secretary receives a completed request from the employee, unless this period is extended:

(A) by mutual agreement of the city and the employee;

(B) by order of the Trial Board or the Administrative Law Judge when necessary to accommodate scheduling difficulties; or

(C) in accordance with other provisions in this section.

(2) At least 15 calendar days before the date of the hearing, unless a shorter notification period is approved by mutual agreement of the city and the employee, the secretary shall notify the employee of:

(A) the date and location of the hearing;

(B) the names of the members of the Trial Board or the name of the Administrative Law Judge; and

(C) the statement of questions to be considered by the Trial Board or the Administrative Law Judge at the hearing.

(3) A request by the city or the employee to postpone the date of a hearing must be submitted in writing to the Secretary not more than 3 calendar days after the requesting party has knowledge of the circumstances necessitating the postponement but not less than 5 calendar days before the date of the hearing. Postponements may be approved only by a majority of the Trial Board members or by the Administrative Law Judge, and no more than two postponements of a case may be granted, except that unlimited postponements may be granted to allow completion of an appeal of another disciplinary or criminal action against the employee. If a hearing is set for a date that is within 10 calendar days of the end of the 60-day period required in subparagraph (1) of this subsection and a request for postponement is made, the 60 day period shall be extended for an additional 30 calendar days.

(d) Substitution of Trial Board Member or Administrative Law Judge.

If a Trial Board member or an Administrative Law Judge is not able to serve a substitute Trial Board member or Administrative Law Judge may be designated at any time before the hearing. If a substitution is made within 15 calendar days before the hearing date, the Secretary shall immediately notify the employee and the city of the substitution. If a substitution cannot be made before the hearing, the 60 day period required in subsection (c), (1), shall be extended for an additional 30 calendar days.

(e) Challenge to Composition of a Trial Board or to Selection of an Administrative Law Judge.

A motion to challenge the composition of a Trial Board or the selection of an Administrative Law Judge must be made in writing and submitted to the Secretary and the opposing party at least 10 calendar days before the hearing date. If a challenge is to a substituted Trial Board member or to a substituted Administrative Law Judge, the motion must be submitted as soon as possible after the substitution is made. A challenge may not be made after a hearing on the merits begin. If a challenge results in withdrawal of a Trial Board member or of an Administrative Law Judge, the 60 day period required in subsection (c), (1), shall be extended for an additional 30 calendar days.

(f) Challenge to Jurisdiction of a Trial Board or an Administrative Law Judge.

A challenge to the jurisdiction of the Trial Board or the Administrative Law Judge to hear the appeal must be made in writing and submitted to the Trial Board or the Administrative Law Judge and the opposing party at least 5 calendar days before the hearing date. A response to the challenge must be made in writing and submitted to the Trial Board or the Administrative Law Judge and the opposing party at least 2 calendar days before the hearing date. A Trial Board or an Administrative Law Judge may refuse to consider a challenge or response not submitted by the time required.

(g) Subpoenas.

(1) In accordance with Section 18, Chapter III of the City Charter, a Trial Board and an Administrative Law Judge are granted the power to compel the attendance of witnesses and the production of testimony and evidence, administer oaths and punish for contempt in the same manner as provided by law for judges of the municipal court. At the request of an appealing employee or the city, the Secretary shall issue subpoenas on behalf of the Trial Board or the Administrative Law Judge for the attendance of witnesses and the production of records at the hearing.

(2) The city or the appealing employee must deliver a written request for a subpoena to the Secretary at least 10 calendar days before the hearing. A request for a subpoena received after this date may be processed only upon order of the Trial Board or the Administrative Law Judge. The request for a subpoena must contain:

(A) the name and address of the witness;

(B) if the witness is a city employee, the name of the employee's department; and
(C) the specific identification of books, papers, documents or other tangible things sought to be subpoenaed.

(3) The Secretary shall cause all subpoenas to be personally served at least 5 calendar days before the hearing. For this purpose the Secretary shall designate a person to deliver the subpoenas to witnesses. The designated person shall sign each subpoena stating that the witness was served. The subpoena of an active city employee may be served through the director of the employee's department.

(4) A witness served with a subpoena who fails to appear at the hearing or fails to produce requested evidence may be punished for contempt by the Trial Board or the Administrative Law Judge.

(5) A city employee subpoenaed to attend a hearing shall be granted leave with pay.

(6) The party requesting a subpoena shall notify the subpoenaed witness of postponements, rescheduling and appearance time.

(h) Questions and Exhibits.

(1) The Secretary shall prepare a statement of questions to be considered by the Trial Board or the Administrative Law Judge during the two phases of the hearing. The Secretary shall send a copy of the statement to the city and the appealing employee at the same time notice of the hearing date and location is sent. Either party may challenge the content of the statement of questions. The challenge must be in writing and submitted to the Secretary and the opposing party not more than 5 working days after receipt of the statement of questions. The Trial Board or the Administrative Law Judge shall resolve all differences on the content of the statement of questions before the hearing begins. The Trial Board or Administrative Law Judge is limited to consideration of the final statement of questions in reaching a decision at the hearing.

(2) Not less than 5 working days before the hearing date, the city and the appealing employee shall exchange exhibits that they anticipate introducing into evidence at the hearing. The Trial Board or the Administrative Law Judge may exclude from evidence at the hearing any exhibit not previously exchanged unless good cause for the failure to exchange is shown and the opposing party is not unduly prejudiced.

(i) Stipulations.

(1) Not less than 3 calendar days before the hearing date, the appealing employee and the city shall agree to a list of facts and exhibits to which both have stipulated, signed by each party or a representative.

(2) If the stipulations are not submitted by the date of the hearing, the Trial Board or the Administrative Law Judge may postpone the hearing. A postponement ordered for failure to submit stipulations extends the 60 day period required in subsection (c), (1), of this section by an additional 30 calendar days.

(j) Rights of the Appealing Employee.

An appealing employee:

(1) may request the hearing, the deliberations, or both, which are usually open to the public, to be closed;

(2) has the right to representation at a hearing; and

(3) shall not be compensated for time lost from the employee's city job while attending a hearing, unless so ordered by the Trial Board or by the Administrative Law Judge.

(k) Failure to Employee to Appear.

If an appealing employee fails to appear at the hearing, the city, through its representative, shall request that the appeal be dismissed. If it appears that the employee had notice of the time and place of the hearing, the Trial Board or the Administrative Law Judge shall dismiss the appeal unless there is a showing that the employee had no control over the failure to appear. If the appeal is not dismissed, the Secretary shall schedule a new hearing date within 30 calendar days from the date of the decision not to dismiss, and no further postponements of the hearing may be granted.

(l) Recording of Hearing Proceedings.

(1) The Secretary shall preserve the records of the hearing. The Secretary shall appoint a court reporter licensed to take notes and make a record of the hearings. The cost of the court reporter service at the hearings shall be paid by the city. The court reporter shall maintain the notes taken at a hearing not less than one year following the conclusion of the hearing. Other records of the hearing will be preserved for three years following the conclusion of the hearing.

(2) If an employee appeals the decision of a Trial Board or an Administrative Law Judge, the employee shall furnish to the court a copy of the transcript from the notes taken at the hearing and pay the fee for the transcript. If the employee fails to provide the transcript to the court, the appeal shall be dismissed. An employee who is appealing a decision of an Administrative Law Judge will not be given a transcript of the hearing until all costs of the hearing owed by the employee have been paid to the city.

(m) Hearing Proceedings.

(1) A hearing shall be conducted in two phases. During the first phase, the Trial Board or the Administrative Law Judge shall hear evidence to determine whether the employee committed the violation that resulted in demotion or discharge. If the Trial board, by a majority vote, or the Administrative Law Judge finds that the employee committed any part of the violation alleged, the hearing shall proceed to the second phase. If the Trial Board or the Administrative Law Judge finds that the employee committed no part of the alleged violation, the employee shall be reinstated without penalty and the proceedings considered closed.

(2) During the second phase, the Trial Board or the Administrative Law Judge shall hear evidence concerning the appropriateness of the discipline imposed for the violation.

(3) The Trial Board or the Administrative Law Judge may either sustain, reverse, modify or amend the disciplinary action as is determined just and equitable under all of the facts and circumstances of the case, provided that the Trial Board or the Administrative Law Judge shall sustain the disciplinary action if; after considering only the evidence relating to the violation found to have been committed by the employee in the first phase of the hearing and relating to the employee's previous employment record with the City, a reasonable person could have taken the same disciplinary action against the employee. The decision of the Trial Board or the Administrative Law Judge may not include any review or consideration of the employee's subsequent performance with the City.

(4) The formal rules of evidence do not apply to a hearing under this section and the decision of the Trial Board or the Administrative Law Judge shall be based on the preponderance of the evidence presented at the hearing.

(n) Summary of Order.

On the working day following a decision resulting in modification or reversal of a disciplinary action, the Secretary shall issue a statement summarizing the order of the Trial Board or the Administrative Law Judge to authorize administrative compliance with the order.

(o) Appeal to District Court.

The decision of a Trial Board or an Administrative Law Judge is final unless appealed to the state district court within one year after the conclusion of the hearing. An appeal to the district court must be decided upon the district court's review of the record of the hearing. An appeal by the city of a trial board decision to district court must be approved by the city manager and city attorney. An appeal by either party to district court does not suspend the execution of the trial board order being appealed. The prevailing party in an appeal to district court is entitled to reasonable attorneys' fees incurred from the date the trial board order is issued.

(p) Computation of Time.