Current through February 27, 2024
(a) A permanent employee in the classified
service who is not covered by a collective bargaining agreement, and who is,
dismissed, demoted, or suspended for more than 10 consecutive days, or more
than a total of 30 working days in a 12-month period may appeal as follows:
(1) within five days following receipt of
written notification, the employee may address an appeal in writing to the
principal executive officer of the employing agency setting out the reasons for
the appeal;
(2) if a satisfactory
resolution is not obtained through the decision of the principal executive
officer within five working days after the date of the appeal, the employee may
appeal the action to the personnel board;
(3) if the action of the principal executive
officer is appealed, the personnel board will consider the appeal of the
employee; if a hearing is requested, the board will, as soon as practicable,
set a date, time, and place for the hearing; the board will give at least two
weeks' written notice of the hearing to both the employee and the appointing
authority, and will hold the hearing within 60 days after the date of the
appeal; the hearing will be closed if requested by the employee; the employee
may be represented by counsel at the hearing.
(b) A hearing conducted by the personnel
board under (a) of this section will be held in accordance with the following
guidelines:
(1) the hearing will be open to
the public, unless the issue involves confidential information that is
protected under
AS
39.25.080; the disputing employee may request
a closed hearing;
(2) the personnel
board will schedule the hearing date as required under
AS
39.25.170; in its discretion, the personnel
board will appoint a hearing officer who shall promptly schedule a pre-hearing
conference with the parties; at the pre-hearing conference, the hearing officer
may require the parties to submit pre-hearing briefs, and exchange witness and
exhibit lists; the hearing officer may set a deadline for filing motions; the
hearing officer may provide for and regulate pre-hearing discovery; the hearing
officer has the authority to sign subpoenas issued under
AS
39.25.175;
(3) a party to the appeal may be represented
by counsel upon giving written notice to the other parties and to the board or
the hearing officer within five working days before the hearing;
(4) all witnesses must be sworn;
(5) the board, or hearing officer will, in
its discretion, admit any pertinent evidence, regardless of the existence of
any common law, statutory, or judicial rule that may bar the admission of such
evidence in a judicial proceeding, if it is the sort of evidence upon which
responsible persons are accustomed to rely in the conduct of serious affairs;
hearsay evidence may be used for the purpose of supplementing or explaining
direct evidence, but will not be sufficient in itself to support a finding,
unless it would be admissible over objection in a civil action;
(6) at the hearing, each party, commencing
with the party who bears the burden of proof, shall present its position and
may
(A) utilize oral testimony taken under
oath or affirmation;
(B) examine
witnesses;
(C) introduce
exhibits;
(D) cross-examine
opposing witnesses on matters relevant to the issues even though that matter
was not covered in the direct examination;
(E) discredit a witness regardless of which
party first called the witness to testify;
(F) rebut the evidence against that
party;
(G) make closing arguments
or submit post-hearing briefs to be determined in the discretion of the hearing
officer or personnel board;
(7) pleadings, motions, and other papers must
conform to the service procedures set out in the Alaska Rules of Civil
Procedure;
(8) upon prior request
and approval, witnesses, parties, and their counsel may appear by
teleconference;
(9) notwithstanding
any provisions in (1) of this subsection, the personnel board will, in its
discretion, ask questions of any party or witness at any point during the
hearing; in its discretion, the personnel board or the hearing officer may seek
additional evidence; all parties to the appeal must be duly notified and given
an opportunity to participate in the consideration of additional evidence; the
personnel board or the hearing officer may require parties to the appeal and
witnesses to remain available to assist in the event additional evidence is
sought;
(10) if the hearing is held
by a hearing officer, the hearing officer shall issue a proposed decision
within 15 working days after the hearing is completed;
(11) unless otherwise contrary to this
chapter, all phases of the hearing except the deliberations of the personnel
board and the hearing officer shall be recorded;
(12) the personnel board will maintain a
record of the proceedings for two years after completion of the
action.
(c) If a dispute
hearing under this section is held by a hearing officer, the personnel board
may adopt the proposed decision in its entirety, or may revise the proposed
penalty and adopt the balance of the proposed decision.
(d) If a dispute hearing under this section
is held by a hearing officer and the proposed decision is not adopted under (c)
of this section, the personnel board, in its discretion, may decide the dispute
upon the record including the transcript or tape recording of the earlier
hearing, with or without taking additional evidence, or may refer the dispute
to the same or another hearing officer to take additional evidence.
(e) If the dispute is referred to a hearing
officer for the taking of additional evidence, the hearing officer shall
prepare a proposed decision based upon the additional evidence and the record
of the earlier hearing. The board will, in its discretion, give the parties the
opportunity to present argument, either oral or written, before the board. If
oral argument is presented, a board member may not vote unless that member
heard the oral argument.
(f) If, in
the hearing under (a)(3) or (b) of this section, the board finds that the
action complained of was due to discrimination based on race, religion, color,
national origin, age, physical or mental disability, sex, marital status,
change in marital status, pregnancy, parenthood, political beliefs, or any
other reason not related to merit, or in violation of the provisions of the
State Personnel Act (AS 39.25) or this chapter, the employee must be reinstated
without loss of pay or benefits for the period of dismissal, demotion, or
suspension. In all other cases the personnel board will report its findings and
recommendations to the appointing authority, the employee, and to the
director.
(g) The time limits
established in this section may be extended by the director if it is determined
that the limits impose undue restrictions upon either party.
The 8/24/94 repeal and readoption of
2
AAC 07.440 first appeared in print in the Alaska
Administrative Code with Register 137 (April 1996).
Even though the repeal and readoption of
2
AAC 07.440 was effective 10/29/2004, it was not
published until Register 175, Oct.
2005.
Authority:AS
39.25.070
AS 39.25.140
AS 39.25.150
AS
39.25.170