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The Career Service Process

-Does your County have aCareer Service Council?

-How many of you have eitherparticipated, or were a witnessin a hearing before a CareerService Council?

-Has your County experiencedan increase in Career ServiceCouncil hearings?

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Why does this presentation apply to me?

Department heads want to be done.• Tired of employee• Do not want to be involved in a

long dragged process• But also do not want the

employee back

You as personnel professionals are stuck in the middle!

Main Point of Emphasis

The hearing before the Career Service Council

is the trial!

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Does my County need a Career Service Council?

Does the County Personnel Management Actapply to my County?

No,– If County has fewer than 200 employees:

• Do not count those covered by other merit systems

– Deputy Sheriff– Fireman

• Do not count certain exempt positions– But, County may still comply if desired

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Who are the Career Service Council?

• Three member bipartisan member (suggest at least one member be an attorney).

• Appointed by County Executive.• Shall be persons in sympathy with the application of merit

principles to public employment.• Serves 3 year term expiring on June 30th

• Must be U.S. citizens.• Must be bona fide residents of the State of Utah and the

County from which appointed of not less than 1 year proceeding date of appointment.

• May not hold another government office.• May not be employed by the County.

Purpose of the Career Service Council:

The purpose behind the Career ServiceCouncil is to provide a fair, impartial,and expeditious venue for Countyemployers and employees to resolvetheir issues without the delay orexpense of going to court.

Is it working?

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What type of cases can theCareer Service Council hear?

Career Service employees, who are:

• Suspended• Transferred• Demoted• Dismissed• Other grievances not resolved by the

grievance procedure at the division or department level.

- The Career Service Councilreviews written appeals incases of applicants rejected forExamination and reports finalbinding appeals decisions, inwriting, to County Legislativebody.

- Career Service Council holds a public hearing on a proposed change of status from non-exempt to exempt.

- Example: Creating an appointed Chief Deputy

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Discrimination and Retaliation

Is there any thing left?

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Counter that with the Career Service Council “may not” hear any other personnel matter.

What are the constitutional protectionsafforded to public employees?

“First, where State law confers on a person a claim ofentitlement to continued employment absent sufficientcause for discharge, such entitlement constitutes aproperty interest, which is protected by the Due ProcessClause of the Fourteenth Amendment. Second, everysignificant deprivation, whether permanent ortemporary, of an interest, which is qualified as“property’ under the due process clause must bepreceded by notice and opportunity for hearingappropriate to the nature of case, absent extraordinary orunusual circumstances.”

See Worrall v. Ogden City Fire Dept., 616 P.2d 598(Utah 1980).

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In my opinion, if you read the Personnel Management Act consistent with the constitutional protection afforded to public employees then you get…

If the discipline affects the public employee’s compensation and benefits, then they must be able to appeal to the Career Service Council.

But, what about?

• Suspensions with pay or without?−Without pay

• Written reprimands• Transfer v. Reassignments

− Legitimate department purpose−Disciplinary, retaliatory, or discriminatory

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Jurisdiction

The Career Service Council may make aninitial determination whether the appeal isone type of matter over which it hasjurisdiction.

Standard of Review• Typically a “substantial evidence” standard is applied

for hearing before the Career Service Council.• Substantial evidence means more than a scintilla of

evidence but something less than the weight ofevidence.

• It is the quantum and quality or relevant evidence thatis adequate to convince a reasonable mind to support aconclusion. See Becker v. Sunset City, 2012 UT App99.

• The Career Service Council is to look at the evidencesupporting the discipline not necessarily whether theyagree with the decision made.

• Potential Problem: Substantial evidence standard fordiscrimination/retaliation cases.

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Discipline Cases

The Career Service Council considers thefollowing:

1. Do the facts support the charges made by thesupervisor; and if so

2. Do the charges warrant the sanction imposed.

See Kelly v. Salt Lake City Serv. Comm’n, 200 UT App235, 8 P.3d 1048. If the Council answers yes to both ofthe above questions, then the Council must uphold thesupervisor’s decision to terminate employee.

Discipline Cases (cont’d)

With respect to whether the charges warrant the sanctions,it further breaks down into two sub-questions:

1. Is the sanction proportional; and

2. Is the sanction consistent with previous sanctionsimposed by the supervisor pursuant to thedepartment’s own policies.

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Discipline Cases (cont’d)

As to the proportionality of the sanction imposed, theCouncil must remember that “discipline imposed foremployee misconduct is within the sound discretion of[supervisor]” and supervisor “must have the ability tomanage and direct his [employees] and is in the bestposition to know whether their actions merit discipline.”The supervisor only exceeds his discretion when thesanction imposed “is in excess of” the range of sanctionspermitted by statute or regulations, or if, in light of all thecircumstances, the punishment is disproportionate to theoffense.”

See Kelly v. Salt Lake City Serv. Comm’n, 200 UT App235, 8 P.3d 1048.

Discipline Cases (cont’d)

As to the consistency of the sanction imposed, the burden is on the employee to establish a prima facie case that the supervisor “acted inconsistently in imposing sanctions by presenting sufficient evidence from which the [Council] could reasonably fine a relevant inconsistency.”

See Kelly v. Salt Lake City Serv. Comm’n, 200 UT App 235, 8 P.3d 1048.

If the employee establishes that the supervisor acted inconsistently, then the burden shifts to the employer to rebut it.

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Typical Process:

• Employee appeals the discipline according to policy.• Pre-Hearing Conference

– May require pre-hearing outlines from the parties.– May also review if Career Service Council has jurisdiction.

• Hearing• Career Service Council deliberations• Career Service Council issues Findings of Fact and

Conclusions of Law• Either party may appeal decision to the District Court.

See example in packet

Why the delay?

Discovery Process:- Must comply with legitimate discovery requests or risk dismissal or an adverse ruling. See Joseph v. Salt Lake City Civ. Serv. Comm’n, 2002 UT App 254; 53 P.3d 11.

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Due Process− Due process right to receive a fair trial in front of a fair

tribunal.− Need not possess the formality of judicial proceeding.− Since the Career Service Council’s decisions are of a

judicial nature, more formality is required. (Again suggest at least member of Career Service Council be an attorney.)

− All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect document and to offer evidence in explanation or rebuttal.

Due Process - Basic Safeguards:− Key witnesses must testify (not just the investigator or the

supervisor).− Key witnesses must be subject to cross examination.− Hearsay is admissible, but must have some residuum of

legally competent evidence.See Tolman v. Salt Lake County Atty, 818 P.2d 23 (Utah Ct. App. 1991).

− No surprise witnesses or documents at hearing.− Council must be impartial and treat both parties similarly.− Council must address the legal issues brought before it,

including objections made by the parties.− Council must have findings and conclusions.

– Can have prevailing party prepare.– Decision must be provided to both parties. See Joseph v. Salt Lake City

Civ. Serv. Comm’n, 2000 UT Ct. App. 327.

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What decisions can the Career Service Council make?

With respect to an Order for disciplinary action, they can:

• Affirm

• Modify

• Vacate

• Set aside (redundant?)

The Career Service Council’s Decisions are Final!

− May appeal to District Court

− May seek a resolution with employee

− But, may not modify the Council’s decision and must immediately enforce their decision

See Salt Lake City v. Salt Lake City Civ. Service Comm’n, 908 P.2d 871 (Utah Ct. App. 1995).

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Appealing the decision of theCareer Service Council:

– Appeal to District Court within 30 days after the Councilissues decision.

• Must be in writing and served on other party.– If there is a record, then the District Court’s review is

limited to record.– Reviewing decision of the Council, the District Court

shall presume that the decision is valid and may determineonly whether the decision is arbitrary or capricious. (Thisis a big deal!)

Main Point of Emphasis

The hearing before the Career Service Council

is the trial!

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Use of an Administrative Law Judge:

• County legislative body many appoint one or more administrative law judges to hear appeals.

• Each Administrative Law Judge must be trained and experienced in personnel matters.- If referred by Career Service Council:

- After holding a hearing Administrative Law Judge must make findings of fact and a recommendation to the Career Service Council.

- After receiving the Administrative Law Judge’s recommendation the Career Service Council may request the Administrative Law Judge hold a further factual hearing.

- The Council may adopt or reject the Administrative Law Judge’s recommendation.

• Experience using an Administrative Law Judge?

Parallel Proceedings:

- Unemployment claim before Utah Department of Workforce Services

- Discrimination/Retaliation claim before Utah Antidiscrimination and Labor Division- Complaints must be filed within 30 days of the

issuance of a written decision of the Career Service Council.

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What about back pay/benefits?

- Nothing in Personnel Management Act that would allow for back pay

- Seems inherit though- See Lucas v. Murray City Civ Serv. Comm’n,

949 P.2d 746 (UT Ct. App. 1997)

- Consider Buckner v. Kennard, 2004 UT 78, 99 P.3d 842.

Clark Merkley:A Unique Perspective

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You be the Career Service Council.

Main Point of Emphasis

The hearing before the Career Service Council

is the trial!

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QUESTIONS?

Robert J. Moore100 East Center Street, Ste 2400Provo, Utah 84601(801)851-8001robertm@utah.gov

UCIP – Career Service Council – May 23, 2012

Clark Merkley, Utah County

1. My background a. Corporate health care attorney – not a litigator, but understand a little about procedure b. HR professional - investigator c. Senior manager – have resolved employee issues, supervised staff

2. Recommendations for a good Career Service Council (CSC) member: a. Having at least one member with some legal background is helpful, especially when the

employee is represented by legal counsel – mostly for procedural matters b. Someone who has experience resolving disputes:

i. HR professional ii. Experienced manager/leader

iii. Trained mediator or arbitrator iv. Contract negotiator v. Claims adjuster

c. Someone who is fair and even-handed d. Someone who is not only a good listener, but can ask good questions e. Someone who can synthesize a large amount of information and make a decision

3. Support that has been helpful: a. Someone in the personnel office who does the scheduling, sends out the documents,

records the meeting proceedings and tracks the documents b. An attorney or a legal resource for the CSC itself

i. Cannot be the same attorney who represents the County in the matters ii. Advises the CSC on procedural issues, scope of remedies available, drafting or

reviewing decisions or orders of the CSC c. Food – especially for after-workday sessions that could go on into the evening

4. Recommendations for good meeting flow and resolution: a. Pre-hearing outline – frame the issues and narrow them if possible b. Discovery review meetings – brief meetings to outline appropriate scope of discovery by

the parties c. Suggested timeline and/or time allotment for presentation of arguments – or chair of

the CSC d. Quickly identify issues, make rulings and memorialize decisions e. Ability to promptly deliver decisions in writing to the parties