Appeal Procedures Of The Pinellas County Unified Personnel System Board

Personnel Board Appeal Procedures

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Section 1. Title and Scope
Section 2. Definitions
Section 3. Hearing Requests and Scheduling
Section 4. Pre-Hearing Conference and Procedure
Section 5. Continuance of Formal Hearing
Section 6. Subpoenas
Section 7. Documentary Evidence
Section 8. Formal Hearing Procedure for Appealing a Discharge
Section 9. Formal Hearing Procedure for Grievance Appeals
Section 10. Board Deliberation and Decision
Section 11. Request For Reconsideration
Section 12. Classification Appeals
Section 13. Waiver/Withdrawal of Appeals
Section 14. Waiver of Procedure for Good Cause
Appendices pdf files

2. These procedures govern practice in all appeal hearings before the Pinellas County Personnel Board in conjunction with the requirements of Rules XX and XXIV of the Pinellas County Personnel Rules.

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Section 2. Definitions
1. Employee - Shall mean any classified service county employee who is entitled to an appeal of a final grievance decision or discharge before the Personnel Board.

2. Board - Shall mean the Pinellas County Unified Personnel System Board.

3. Calendar Day - Shall mean the respective days of the week. In computing any period of time prescribed by these rules, if the day on which the act is required to be done falls on a Saturday, Sunday, legal holiday, or county holiday, the act may be done on the next day which is none of those days.

4. Director - Shall refer to the Director of Human Resources or his or her designee.

5. Parties Shall refer to the employee and the appointing authority. The Appellant refers to the party bringing the appeal. The Appellee is the party defending the appeal.

6. Classification Appeal – Shall refer to an appeal by an employee whose position classification has been downgraded by the Director of Human Resources.

Section 3. Hearing Requests and Scheduling
1. Any affected employee or the Appointing Authority shall have the right to appeal the final decision of the Informal Grievance Committee, unless otherwise provided by the Personnel Rules, and a permanent status classified employee shall have the right to appeal a discharge to the Personnel Board. Such appeals must be made in writing, in accordance with Rules XX or simply by submitting a letter, to the Director, within ten (10) working days from the employee's receipt of the grievance decision or within ten (10) working days from the effective date of discharge, or the employee’s receipt of written notification of discharge, whichever is later. (See Appendix A , for example). The letter should state whether all or part of the decision of the grievance panel is being appealed and what outcome the employee is seeking. Any findings or determinations of the Informal Grievance which are not appealed shall be binding upon the parties.

2. Upon receipt of a request for a hearing, and not later than twenty (20) days thereafter, the Director shall schedule a hearing and notify the County Attorney. Except as provided in §7-4 of these rules, the hearing shall be held within one hundred twenty (120) days from the receipt by the Director of the Hearing request.

3.In the event the final decision of an Informal Grievance Committee is appealed, the Appellee may cross appeal any determination of the Panel which is not being appealed by the Appellant and which otherwise would be binding upon the parties. The notice of Cross Appeal shall be provided to the Director of Human Resources and the Appellant within 10 days of the date of the initial letter from the Director of Human Resources setting the appeal for hearing before the Board.

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Section 4. Pre-Hearing Conference and Procedure
1. Upon request by the Director, the County Attorney will issue a notice to the parties involved to appear at a pre hearing conference. The notice to the parties shall be sent via certified mail, return receipt requested, and shall be mailed not later than ten (10) days prior to the scheduled date of the pre-hearing conference. The purpose of the Pre-Hearing conference is to identify issues, witnesses and exhibits and agree to those matters that will not require strict proof before the Personnel Board.

2. Parties will bring with them the following information to the pre hearing conference:

a. A brief written statement (legibly handwritten or typed) of the case, which shall not exceed 500 words, and which describes their view of the relevant facts regarding the appeal and in the case of the Appellant or Cross Appellant, the outcome that is sought.

b. A written listing (legibly handwritten or typed) of documentary evidence and exhibits and witnesses which they intend to present at the appeal hearing, with a brief description as to the evidentiary purpose. If a party desires to subpoena witnesses, each witness' full name, home address and/or business address should be provided. The number of witnesses listed by a party shall not exceed fifteen unless the Board specifically authorizes more upon written motion made by the party seeking to list witnesses in excess of fifteen in number, served upon the opposing party and the County Attorney. The written motion should include the names of the additional witnesses and the nature of their testimony and will be ruled upon by the Board at the next regularly scheduled meeting.

c. A set of the physical evidence the party intends on using at the hearing which will be given to the opposing party at the pre-hearing conference. Each party is expected to be prepared to make binding agreements on the admissibility of all exhibits and be prepared to agree on arrangements for submission to the Board of those exhibits for which there are no objections.

d. Failure to comply with this section will result in the pre-hearing conference being continued for 1 week to allow compliance. Non-compliance after a continuance of the pre-hearing conference shall be reported to the Board and may result in the Board striking the non-complying party’s witnesses or exhibits or other remedies as determined by the Board.

3. Following the completion of the pre hearing conference, the County Attorney, within five (5) working days, will prepare and issue a Pre Hearing Conference Statement. The Pre Hearing Conference Statement shall include the following:

a. A statement of the case, which may either be a combined edited version of the statements provided by each party or, as an alternative, the County Attorney may simply attach each party's respective statement of the case as a combined exhibit. The decision regarding the statement of the case by the County Attorney shall be final.

b. A description of the issues to be resolved.

c. A listing of documentary evidence, exhibits, and witnesses to be presented, and a brief statement explaining their purpose.

d. Any stipulated issues and pertinent facts. (A sample Pre Hearing Conference Statement is included as Appendix C ).

4. Exceptions regarding the Pre Hearing Conference Statement must be in writing and shall be filed with the County Attorney not later than five (5) working days from the date the Pre-Hearing Conference Statement is issued. A party wishing to object to the granting or denial of an exception may do so at the beginning of the formal appeal hearing. The Personnel Board, by a majority vote, will then decide on the exception. Once exceptions have been decided, the Pre Hearing Conference Statement shall become binding upon the parties, and any other testimony or evidence not reflected in it will be excluded. However, the Personnel Board may, by a majority vote, allow previously undisclosed testimony or evidence to be presented if good cause is shown by a requesting party.

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Section 5. Continuance of Formal Hearing
1. Upon request of either party, and with the approval of the Director, the formal hearing may be continued. Additionally, the Director of Human Resources may reschedule an appeal hearing based upon his/her own discretion provided it is still within the 120 day time frame mentioned in paragraph 3 2 above. Continuances beyond the 120-day period mentioned in paragraph 3-2 above may only be granted if both parties agree, or, if one party requests such a continuance and the other party does not agree, if recommended by the Director of Human Resources and approved by the Board’s Chair or Vice-Chair.

2. If a formal hearing is continued by the Board, it will automatically be scheduled for the next regularly scheduled Board Meeting, unless the Chairperson of the Board directs otherwise.

Section 6. Subpoenas
1. All parties and the Board, at its own request, have the right to request subpoenas, to compel the attendance of witnesses at appeal hearings or Board-conducted investigations (see Appendix D ). Subpoenas may also be issued to compel production of books, papers, and other documents for Board hearings and investigations. The party requesting the issuance of subpoenas shall be responsible for preparing the subpoenas and paying the witness fee and mileage as provided by law. Service of the subpoenas shall be the responsibility of the requesting party, and shall be made in accordance with the Florida Rules of Civil Procedure. In the event either or both parties are not represented by legal counsel, the County Attorney will provide assistance to them in preparing subpoenas.

2. The parties to an appeal may agree to conduct depositions of witnesses before a court reporter prior to an appeal hearing without the need for the issuance of subpoenas, provided the witness agrees to testify. Additionally, the Board Chairperson may, upon a showing of good cause by the requesting party, issue a subpoena directing a witness to appear at a designated place and time to provide testimony which appears relevant to a Board investigation or a pending appeal. However, such subpoenas shall only be issued if the requesting party agrees to have the testimony taken before an official court reporter, and agrees to pay the costs and expenses relating thereto.

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Section 7. Documentary Evidence
1. Documentary Evidence must be relevant to the issues involved in the case.

2. Printed Exhibits shall be submitted in note books or otherwise securely clipped or bound. Each set shall be consecutively numbered or “Bates stamped”. The exhibit should be clearly identified as to the party submitting the exhibit. (e.g. Appellant’s Exhibit; Appellee’s Exhibit or Agreed upon Exhibit.)

3. The parties must provide a minimum of two copies of the exhibit(s). Each party shall be responsible for providing their own copies. Human Resources shall provide copies of the exhibits to the members of the Personnel Board via electronic means at the election of the individual members. In the event that any member of the Personnel Board choose to receive the exhibits by printed copy, the parties shall be required to provide those copies in addition to the two set forth above. The parties shall be advised of this in the Notice of Pre-hearing Conference. The distribution of copies (electronic or otherwise) shall be as follows: one to each Board member (7), Counsel to the Board (1), the Director of Human Resources (1) One printed copy shall be used as the record copy. A printed or electronic copy of the proposed exhibits must be served on the opposing party as provided in §7-4.

4. The Parties are responsible for delivering the required printed copies of the exhibits to the Human Resources Department no later than 10 business days before the scheduled hearing. Failure to submit the exhibits timely will result in the automatic continuance of the hearing to the next available meeting date of the Board. Each party shall be responsible for submitting the exhibits it intends on placing into evidence. Each party shall serve a copy of its exhibit package upon the opposing party.

5. After one continuance has been granted under §7-4, the failure by either party to deliver their proposed exhibits to Human Resources 10 business days before the continued hearing may result in the Board disallowing any documentary evidence by that party or other remedy as determined by the Board.

6. It is the intent of the Board that all proposed exhibits shall be provided to the members of the Board prior to the Appeal Hearing. In the event that either party objects to evidence being submitted, they may file a written objection stating the basis of the objection which will be submitted to the members of the Board at the time the proposed exhibits are submitted. A copy of any objection shall be served upon the opposing party. Objections to evidence will be heard prior to its admission into evidence.

7. The Personnel File held by Human Resources shall be a standard exhibit in appeals of termination and grievances. The Human Resources Department shall provide a copy to the members of the Board prior to the appeal hearing. A copy of the personnel file shall be provided to the parties electronically or in printed form prior to the pre-hearing conference. In the event that both parties object to the admission of all or a portion of the File, such objection(s) shall be made in writing and served upon Counsel for the Board and the opposing party within 5 days of the close of the pre-hearing conference. Counsel for the Board shall determine if the nature of the objection is such that the Board should consider the objection before the documents are provided to the Board or if the documents can be provided to the Board prior to resolution of the objection. Any objection to all or a part of the personnel file shall be renewed and resolved by the Board at the time of the appeal hearing. All objections under this section or §7-6 shall be waived if not renewed at the time of the appeal hearing.

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Section 8. Formal Hearing Procedure for Appealing a Discharge
1. During the appeal of a discharge, the following sequence of events will occur:

a. Exceptions raised by the parties on the Pre Hearing Conference Statement will be read aloud by the County Attorney, and the parties will argue their respective sides concerning the exceptions. The excepting party will argue first. After both sides have completed their arguments, the Personnel Board will grant or deny each exception. Written objections will be ruled upon by the Board prior to opening statements.

b. After the decisions on exceptions, the parties will present opening statements. The opening statement should include: a brief introduction of the party; an explanation of why the hearing has been called; an explanation of what each party intends to show by evidence presented; and a statement as to what the Board is to decide. Opening statements should not exceed ten (10) minutes. The party bringing the appeal will present his or her opening statement first.

c. Next, the parties shall present witnesses, documents, and any other relevant evidence. The Appointing Authority, or his/her representative, shall proceed first. During the presentation of evidence, parties will have the opportunity to object and cross examine witnesses. Objections will be decided by the Board as they arise. During the proceedings members of the Board may ask such questions as they believe necessary and relevant to the determination of the issues presented to them.

d. After both parties have presented their cases, the Appointing Authority shall be given the opportunity to rebut evidence presented by the Appellant. Next, the Appellant will be given the opportunity for surrebuttal to the Appointing Authority’s rebuttal. No new evidence or testimony will be permitted during rebuttal or surrebuttal, unless it explains or contradicts testimony or evidence previously submitted before the Board.

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Section 9. Formal Hearing Procedure for Grievance Appeals
1. During an appeal other than an appeal of a discharge or a classification appeal, the following sequence of events will occur:

a. Exceptions raised by the parties on the Pre Hearing Conference Statement will be read aloud by the County Attorney, and the parties will argue their respective sides concerning the exceptions. The excepting party will argue first. After both sides have completed their arguments, the Personnel Board will grant or deny each exception. Written objections will be ruled upon by the Board prior to opening statements.

b. After the decisions on exceptions, the parties will present opening statements. The opening statement should include: a brief introduction of the party; an explanation of why the hearing has been called; an explanation of what each party intends to show by evidence presented; and a statement as to what the Board is to decide. Opening statements should not exceed ten (10) minutes. The Appellant will present his or her opening statement first.

c. Next, the parties shall present witnesses, documents, and any other relevant evidence. The Appellant, or his/her representative, shall proceed first. During the presentation of evidence, parties will have the opportunity to object and cross examine witnesses. Objections will be decided by the Board as they arise. During the proceedings members of the Board may ask such questions as they believe necessary and relevant to the determination of the issues presented to them.

d. After both parties have presented their cases, the Appellant shall be given the opportunity to rebut evidence which was presented by the Appointing Authority. Next, the Appointing Authority will be given the opportunity for surrebuttal to the Appellant’s rebuttal. No new evidence or testimony will be permitted during rebuttal or surrebuttal, unless it explains or contradicts testimony or evidence previously submitted before the Board.

2. The burden in grievance appeals shall be upon the Appellant to show, by a preponderance of the evidence, that the action taken by the Appointing Authority should be modified or revoked.

3. The parties in a grievance appeal shall be limited in their presentations to the issues and evidence presented at the informal grievance panel hearing. Evidence and witnesses not presented at the informal grievance panel hearing shall only be admissible at the Unified Personnel Board appeal hearing if the party seeking to proffer such evidence (or witnesses) establishes to the satisfaction of the Board that it made a good faith effort to present the same at the informal grievance panel hearing but was unable to do so.

4. In rendering its findings and decision regarding grievance appeals, the Board shall decide the following issues:

a. Has the Appellant shown that the action complained of should be modified or revoked?

b. If the evidence supports the modification of the action complained of, what modification should take place?

5. Notwithstanding any of the above, the Board shall be without jurisdiction to hear a grievance appeal from an individual who is no longer in the classified service at the time of his/her scheduled hearing.

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Section 10. Board Deliberation and Decision
1. After closing arguments have been made, the Board will deliberate and render its decision either sustaining, reversing, or altering the decision of the Appointing Authority. In reaching its decision, the Board will make specific findings as follows:

a. Does the Board find that the Appellant committed the activities for which he/she was disciplined?

b. Does the Board find that cause existed for the disciplinary action in that the above mentioned activities violated the Personnel Rule(s) cited by the Appointing Authority?

c. Does the Board find that the disciplinary action taken by the Appointing Authority towards the Appellant was appropriate? (In Grievance appeals, the Board should make specific findings at to the issues set forth in section 9-4, in lieu of the issue set forth herein,)

2. Following the closing argument, the appeal proceedings shall be closed to presentation of further evidence or testimony. The Board shall then deliberate, in public, regarding the testimony and evidence presented. The deliberation shall begin with a review by the Board's legal advisor of what issues the Board must resolve in the appeal.

3. The burden shall be upon the Appointing Authority in appeals which involve termination, to show, by a preponderance of evidence, that the Appellant committed the activities for which he/she was disciplined, and that the activities violated the Personnel Rule cited. In the event the Board renders a tie vote on either of these two issues, since there is no affirmative vote finding cause for the disciplinary action, the action shall be reversed.

4. If the Board determines that cause existed for the action, the burden shall be upon the Appellant to show, again by a preponderance of the evidence, that the action taken was not appropriate. In the event of a tie vote on this issue, the action taken shall be upheld. If the Board finds that the action taken was not appropriate, it shall remand the matter to the Appointing Authority for a recommended alternative disciplinary action, which shall be considered by the Board before it renders its final decision.

5. The Appointing Authority may elect to respond at the appeal hearing and provide a recommended alternative disciplinary action. In such instance, the Board may render its final decision at that time, or postpone its final decision until a later date. Otherwise, the Appointing Authority shall respond to a request to provide a recommended alternative disciplinary action in writing, not later than ten (10) working days following the appeal hearing. The Board shall then render its final decision at the next regularly scheduled Board meeting.

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Section 11. Request For Reconsideration
1. In the case of an appeal under Personnel Rule XXIV, either party may, within ten (10) days of receipt of the Board's decision, file a motion requesting it to reconsider, modify, or amend its findings and/or decision.  However, such a request will only be granted if:

a. The proposed modification or amendment is based upon evidence previously presented or is based upon newly discovered evidence which, by due diligence, could not have been discovered prior to the formal hearing; and

b. A showing is made that the Board’s decision was made through or based upon fraud, collusion, deceit, or mistake of fact or law.

a. The Board has overlooked or misapprehended points of law or fact;

b. There was a misrepresentation or misconduct at the appeal hearing by the opposing party; or

c. There is a showing that false testimony or evidence was submitted.

2. The motion for reconsideration may be made by a formal motion or in letter form (see Appendix F) and addressed to the Director.  It should contain a brief summary of the reasons for the reconsideration, modification, or amendment. The Motion for Reconsideration may be amended or supplemented at any time prior to 10 days before the hearing at which it is scheduled to be heard.

3. The Motion for Reconsideration should be heard at the next available Board meeting but may be continued by the Chair at the request of either Party. The Motion for Reconsideration must be heard within 90 days of the written Decision of the Board. The burden shall be on the movant to prove that a reconsideration is necessary and must be supported by references to the Transcript or other evidence as allowed in §11-1. Such new evidence or copies of the relevant portion of the transcript must be provided to the Director of Human Resources no later than 10 days prior to the hearing.

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Section 12. Classification Appeals
1. Classified employees who have had their positions downgraded as a result of a classification and/or pay grade review have the right to a reasonable opportunity to be heard by the Board.

2. If, after an informal hearing before the Director, in a manner and form to be determined by the Director of Human Resources, an employee is still not satisfied with the position reclassification or pay grade determination, he or she may, within ten (10) working days request an opportunity to be heard by the Personnel Board.

3. Classification appeals shall be subject to scheduling as determined by the Director of Human Resources, but shall be heard within 120 days of the employee’s request to be heard.

4. The classification appeal shall be a review of the evidence and materials which were presented and considered during the informal hearing process before the Director. The parties shall exchange written materials which are to be considered by the Board not later than fourteen (14) days prior to the hearing date, and such materials shall not exceed fifty (50) pages in length. At a minimum, the package submitted by the Human Resources Department shall include the Personnel Audit Questionnaire completed by the affected employee, a copy of the employee’s completed appeal form, and the response from the Director to the employee’s appeal form.

5. During the appeal hearing, the employee making the appeal will be allowed up to thirty (30) minutes to present his or her arguments. The Human Resources Department staff will then be allowed up to thirty (30) minutes to present their arguments. Each party, in the same order, shall be permitted up to ten (10) minutes to rebut the other side’s argument.

6. Following the presentation of arguments and rebuttal, the Board will decide the following issues:

a. Do the arguments and documentary evidence submitted show the classification or pay grade decision by the Director of Human Resources should be changed?

b. If the evidence submitted shows that the classification or pay grade decision should be changed, what should that decision be changed to?

7. The Board’s decision regarding classification appeals shall be final.

Section 13. Waiver/Withdrawal of Appeals
1. Failure of an appellant to file an appeal within the time frame specified under the respective Personnel Rule shall constitute a waiver of the individual's right to an appeal, unless there is a showing, by a preponderance of evidence, that such failure to comply was due to fraud, mistake of fact, or excusable neglect.  When an appellant has failed to comply with the time frame requirement, the Board shall conduct a separate hearing to make a determination as to whether the appellant should be treated as having waived his/her appeal rights.  In any event, the Board shall be without jurisdiction to hear any appeal which has not been filed within thirty (30) days of the effective date of the disciplinary or aggrieved action.

2. Parties to an appeal are expected to appear at noticed pre-hearing conferences and appeal hearings. Upon motion and a showing that an appellant had notice of and failed to appear at a scheduled pre-hearing conference or appeal hearing, the Board may treat such failure to appear as a voluntary withdrawal of the appeal. Notice of the motion, and the date and time of the meeting when it will be considered by the Board, shall be provided by the moving party via regular U.S. Mail to the appellant at his or her last known address.”

Section 14. Waiver/Withdrawal of Appeals
1. Except as set forth in Section 13, upon motion of a party the Board may waive the application of any part of the Appeal Procedures upon a showing of good cause and lack of unfair prejudice to the opposing party.

Appendices:
A. Letter Requesting a Formal Hearing Before the Personnel Board

B. Notice of Pre-Hearing Conference

C. Pre-Hearing Conference Order

D. Subpoena

E. Findings and Decision

F. Motion for Reconsideration, Modification, or Amendment

Revised March 2010

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