10.1 - Setting of Hearings
The Board shall schedule an appeal hearing within a reasonable time from the date the appellant files with the Director an answer to charges made and a request for a hearing in accordance with the County Charter. Subject to the provisions of 10.2, hearing dates shall be established by the Chairperson in accordance with the following priorities:
First Priority: Dismissals and Demotions or other actions where there is a continuing loss of pay or service, with the oldest heard first.
Second Priority: Suspensions not heard by a hearing officer, provided that such suspensions shall be heard as a first priority in instances in which the appellant has a pending dismissal appeal.
Notwithstanding the above priorities, for the period beginning February 1, 1998 and ending December 31, 1998 hearing dates for suspensions may be scheduled at the discretion of the Personnel Board while first priority items are pending.
10.1.1 - Dismissal with Suspension Appeals Pending - In any instance in which an appeal of a dismissal has been filed and the appellant has a hearing pending on one or more suspension appeals in accordance with a procedure agreed by the Board of Supervisors and a recognized employee organization, the hearing of the dismissal shall not be scheduled until the suspension appeal has been concluded.
10.1.2 - Hearing Dismissal Appeal in order with Pending Suspension appeal - Notwithstanding the provisions of Rule 10.1.1, a dismissal appeal will be heard in regular order upon written agreement by the parties and filed with the Board Secretary that any
pending suspension appeal need not be heard prior to the hearing of the dismissal appeal.
10.2 - Continuances - With the approval of the Chairperson, hearings may be continued by stipulation of the parties. All stipulations, including the reasons for the continuances and any conditions upon which the stipulation is based, shall be confirmed in writing. If there is not a stipulation regarding a continuance, a party may apply to the Chairperson for a continuance only if the party has made a reasonable effort to notify the other party or representative of that party. A continuance may be granted only if there is good cause, and shall be confirmed in writing. Except in cases of extreme emergency, requests for continuances made within five working days before the scheduled hearing date should not be granted.
In any case where there has been a continuance, the Board may consider the facts surrounding the continuance to determine whether back pay, if any, should be awarded for the period of the continuance.
10.3. - Disqualifying Board Member - Any party seeking to disqualify a member of the Board from participating in a disciplinary hearing for any reason must file a motion to disqualify the member no less than 7 calendar days prior to the date of hearing. The motion must state the grounds upon which the party seeks to disqualify the member, and it must be accompanied by one or more declarations under penalty of perjury which set forth the facts upon which the motion is based. The member who is the subject of the motion shall be notified by the Board Secretary upon receipt of the motion, and he/she may submit a declaration in response to the motion. In the event that the moving party neither knew of the facts giving rise to prejudice, nor has reason to know of such facts within 7 days of the hearing date, a motion may be filed up to the commencement of the hearing. In such an instance, the motion must be accompanied by a statement of when he facts giving rise to prejudice became known to the
moving party, and why they could not have been discovered with the exercise of due diligence prior to that time.
Any party filing a motion for disqualification on the grounds of bias shall have the burden of showing actual prejudice against such party in the matter scheduled for hearing. Those members who are not the subject of the motion shall rule on the basis of the declarations submitted on any oral arguments of the parties.
10.4 - Pre-Hearing Conference - Prior to the time set for hearing, but after the time required for written charges and answer, the Chairperson may request the parties to attend an informal conference for the purpose of ascertaining the areas of disagreement, the number of witnesses to be called, the type and quantity of documentary evidence to be introduced, the length of time estimated to be needed for the hearing, and whether or not the matter can be settled. This conference shall not constitute a hearing on the issues, but shall be solely for the purpose of expediting such hearing.
Conduct of Board Hearings:
10.5. 1 - The hearing shall be public, except as otherwise provided by law, may be conducted informally, and the rules of evidence need not apply.
10.5.2 - Each party may be represented by counsel (representation by counsel is not a requirement). If represented by counsel, each counsel shall be on record with the Board Secretary for correspondence and other material relating to the hearing.
The Board shall schedule each hearing date under these rules, and all concerned parties shall adhere to the start times of each hearing. Failure to attend a hearing as scheduled may cause a default proceeding to occur.
10.5.3 - Each appellant may testify on his/her own behalf, may call witnesses and cross-examine opposing witnesses on matters relative to the charges, and may make a closing argument. The Chairperson may issue up to six subpoenas per side to require the attendance of witnesses and the production of records, documents, and other evidence at the hearing. Any relevant evidence of the sort that responsible persons are accustomed to rely on in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions, is admissible; however, privileged matter, hearsay, irrelevant and repetitious evidence may be excluded by the Chairperson. The Board or Officer invoking the disciplinary action shall first present evidence relative to charges, following which the employee shall present evidence in regard thereto. Thereafter, the Officer or Board invoking the disciplinary action and employee may each make a closing argument which may be limited by the Chairperson. The Chairperson may call and examine any witness, may determine the number and order of witnesses, and may conclude the hearing at any time after both parties have presented evidence and argument.
10.5.4 - Each counsel or appellant presenting evidence to the board shall provide copies sufficient for the entire Board membership and Court Reporter. Any party submitting evidence to the board shall have all exhibits pre-marked for identification purposes and submitted to the Board prior to presenting their case-in-chief. Exhibits jointly stipulated upon shall be marked "Joint Exhibit (Number)"; items presented by the County shall be marked "County (Number)"; and items presented by Appellant shall be marked "Appellant (Alpha)." However, additional exhibits introduced may be admitted, subject to objection and opinion of Chair.
10.5.5 - Proposed Findings of Fact -At the conclusion of the hearing, each party shall submit a statement of proposed findings of fact to the Board. The Board shall review all proposed findings and may add to, modify, or delete such proposed findings in whole or in part.
Alternatively, the parties may enter into a stipulation on the record prior to the commencement of the hearing that the prevailing party shall prepare proposed findings after notification of the Board's intended decision. Such a stipulation shall specify the time within which proposed findings are to be submitted, and the Board shall have until its next regularly scheduled hearing date either to adopt or to modify the proposed findings.
10.6 - Dismissal or Default - An employee or his/her representative of record may withdraw a request for hearing or dismiss any appeal by submitting to the Director or Chairperson or department head a written statement withdrawing or dismissing the matter. Upon the filing of such written statement with the Board Secretary, the matter is automatically dismissed with prejudice, and no hearing by the Board will be permitted.
The Board or a hearing officer may dismiss or otherwise dispose of a case based upon a default or failure of the defaulting party to proceed on a scheduled hearing date. A default against an employee where discipline is upheld may be taken only where there is a prima facie showing of cause for discipline.
When a default has been taken, a notice of default shall be mailed to the employee at his or her last address. It is the employee's responsibility to keep the Board apprised of his or her address. An employee seeking relief from a default must file a written request for relief within 15 days from mailing of the notice.
10.7 - Decision of Personnel Board - The Board may sustain or reject the discipline imposed, or may independently determine the appropriate amount of discipline consistent with the Charter not to exceed the amount initially imposed by the department.
At the conclusion of the hearing, the Personnel Board shall make written findings as to each charge, and shall set forth in writing its conclusions based upon such findings. A reporter's transcript of findings may constitute written findings and conclusions. Such findings and conclusions shall be distributed in the manner prescribed by the Charter of Santa Clara County. If the Personnel Board desires to include recommendations with such findings and conclusions, it may, after making the findings and conclusions and prior to distribution thereof, convene for such purpose. At such meeting it may seek and consider any evidence, which in its sole discretion it deems to be relevant thereto.
Such recommendations, if any, as are agreed upon by three members of the Board, should be distributed in the same manner and at the same time prescribed for the findings and conclusions.
10.7.1 - Assuring Majority Vote Decisions: Before the beginning of a disciplinary hearing involving a decision to terminate an employee from County service where less than five Board members are present, the Board shall:
i) Upon the request of either party to the hearing or on the Board's own initiative, continue the matter to a date when all five members are present; or, in the absence of a request or decision by the Board not to proceed,
ii) Proceed with the understanding that if the Board members hearing the matter fail to reach a three vote majority decision, the appeal will be reheard by a full five member board.
The Board retains the sole discretion to decide whether to proceed with a hearing involving an appeal of a decision to suspend or otherwise impose discipline that does not involve termination from County service where less than five Board members are present.
10.8 - Hearing Officer - As an alternate to a hearing before the Board, a hearing may be held before a hearing officer pursuant to any agreement between the parties as provided where there is an agreement between a recognized employee organization and the County. If there is no applicable agreement, and with the consent of the employee and the Director, an alternate procedure may be provided. Hearings before a hearing officer are governed by applicable agreements or by these rules and such other rules as are promulgated by this Board.
10.8.1 - Expedited Suspension Hearing Process - The Chairperson is authorized to schedule hearings as outlined in Section 10.1 and 10.8 of these rules.
When in the opinion of the Chairperson it is necessary to expedite the hearing of existing suspension/demotion cases, the Chairperson may create 'Hearing Panels,' consisting of at least two members of the Board. Each panel will be considered a Hearing officer as outlined in Section 12 of these rules. Each panel shall be subordinate to the Board, and make findings and recommendations to the Board in accordance with these rules.
The Chairperson may establish up to two half-day (four hour) sessions for the consideration of cases involving suspensions/demotions in addition to the regularly scheduled termination hearing calendar, subject to staffing and Board considerations. Whenever possible, staff advocates will be utilized for presentation of these cases. In order to remain in date-order of scheduling, no suspension/demotion case utilizing this expedited process shall be scheduled unless the date of such appeal predates any pending termination appeal as outlined in Section 10 of these rules."
10.9 - Distribution of Rules of Procedure - A copy of these rules shall be mailed to the employee following receipt of a request for a hearing. The Board Secretary shall keep a record of such mailing. Failure of an employee to receive these rules shall not affect the merits of any case but may constitute cause for a short continuance.