Section R13-5-703. Appeal to the Council

A.      Appealable actions. An employee may appeal any disciplinary action that results in the employee’s dismissal, demotion, sus- pension without pay, forfeiture of accrued leave time, or reduction of pay.

B.       Form of appeal. To initiate an appeal, an employee shall sub- mit a signed written appeal to the business manager stating the specific grounds for the appeal.

C.      Time for appeal. An employee shall file an appeal within 30 days after being served with the notice of disciplinary action.

D.      Agency responsibility. An agency shall have the burden of going forward with the case once an appeal has been filed. An agency must prove the cause for disciplinary action by a pre- ponderance of the evidence.

E.       Effect of appeal. The Council shall determine whether the cause for the disciplinary action is supported by law and the evidence. The Council may sustain, modify, or rescind the dis- ciplinary action. If the disciplinary action is rescinded, the Council shall order the agency head to reinstate the employee and to pay the employee accumulated back pay.

F.       Amended notice of disciplinary action after employee files an appeal. If good cause exists, an agency head may file with the Council a motion to amend the notice of disciplinary action. The motion shall be filed no later than 30 days before the hear- ing.

G.      Notice of hearing. The Council shall notify the parties of the time and place of the hearing.

H.      Failure to appear. If a party, without good cause, fails to appear at the time and place set for a hearing, the Council may find in favor of the appearing party.

I.        Conduct of hearings. The Council shall sit as a whole at a hearing, unless a Council member declares a conflict or is unable to attend. Only a Council member who was present at a hearing may participate in making the decision. Council mem- bers may administer oaths, issue subpoenas for the attendance of witnesses and the production of books or papers, and cause the depositions of witnesses residing within or outside the state to be taken in the manner prescribed by law for depositions in civil cases in the Superior Court of this state.

J.        Witness fees. Witnesses at a hearing, other than employees, are entitled to the fees allowed witnesses under A.R.S. § 12-303.

K.      Payment of witness fees. If the Council subpoenas a witness on its own initiative, the Council shall pay the witness’ fees and mileage. The requesting party shall pay the fees for sub- poenaed witnesses. An employee appearing as a witness on duty shall receive travel expenses from the agency and shall not be entitled to witness fees.

L.       Discovery.

1.        Within three business days after receiving a written request from the employee, the agency shall provide a complete copy of the investigative file, as well as the names and home or work mailing addresses of all persons interviewed during the course of the investigation, to the employee. For the purpose of this subsection, hand writ- ten notes substantially incorporated within a report are not considered part of the investigation file.

2.        Within 20 days after receiving the investigative file, the employee shall provide all material relating to the defense of the employee to the agency.

3.        After initial discovery, each party shall provide all new material relating to the case to the other party within 10 days after receipt.

4.        No later than five business days before the hearing, or if the hearing is scheduled more than 20 days after the notice of appeal was filed, no later than 10 business days before the hearing, the agency and the employee shall exchange copies of any documents that may be intro- duced at the hearing and that have not been previously disclosed.

5.        No later than five business days before the hearing, or if the hearing is scheduled more than 20 days after the notice of appeal was filed, no later than 10 business days before the hearing, the agency and the employee shall exchange the names of all witnesses who may be called to testify. A witness may be interviewed at the discretion of the witness. The parties shall not interfere with any deci- sion of a witness regarding whether to be interviewed. An agency shall not discipline, retaliate against, or threaten to retaliate against, any witness for agreeing or not agree- ing to be interviewed or for testifying or providing evi- dence in the hearing.

6.        No later than five business days before the hearing, the agency and the employee shall provide all documents that will be used at the hearing and a list of intended witnesses to the office of the Council.

7.        If a party fails to provide material as required, the Coun-

cil may preclude its use at the hearing.

M.     Motions. All motions shall be in writing and filed no later than 20 days prior to the hearing. A response shall be filed in writ- ing within 10 days after service of the motion. The chair may designate one or more members of the Council to hear and rule on a motion, except a motion to dispose of the case requires a vote of a majority of the Council.

N.      Pleadings. The Council may strike a pleading not filed in accordance with this Section.

O.      Depositions:

1.        On the motion of a party, the Council may order the depo- sition of a witness under the following circumstances:

a.         The witness does not reside within the state or is out of state,

b.        The witness is too ill to attend the action before the Council, or

c.         The deposition is for the purpose of discovery in preparing a case before the Council.

2.        The requesting party shall pay the expense of any deposi- tion. An employee of the agency is not entitled to a wit- ness fee for giving a deposition.

3.        The deposition of a witness who is unavailable to appear at a hearing may be used in evidence by either party or the Council.

P.       Open hearings. The Council’s hearings shall be open to the public. The Council may, upon request of a party, exclude non- testifying witnesses from the hearing. The Council may keep excluded witnesses separated and prevent them from commu- nicating with each other until all are examined.

Q.      Minor discipline hearings. When the Council hears appeals of suspension without pay of 24 hours or less or the deduction of 24 hours or less from an employee’s annual leave balance, each party shall have no more than three hours to present evi- dence unless the Council allows more time to assure a fair hearing.

R.      Legal counsel or representative. Before the hearing of any appeal, each party shall designate its legal counsel or represen- tative for the record. The Council shall advise each party with- out legal counsel that the party may obtain and be represented by counsel at the hearing. At the request of a party, the Council may postpone the hearing for a reasonable length of time to allow a party to obtain legal counsel.

S.       Presentation of evidence. Both parties may present evidence and witnesses either personally or through a representative. The Council shall exclude evidence irrelevant to the causes set forth in the notice of disciplinary action.

T.       Settlement of disputes. If requested by the employee, the par- ties shall submit the terms of settlement to the Council. If the Council approves the settlement, the settlement becomes final. If no settlement is reached, or if the proposed settlement is revoked or rejected by the Council, or withdrawn by either party, or if the settlement agreement is later vacated or reversed by a court, neither the settlement discussion nor any resulting agreement shall be admissible against the employee in any hearing before the Council on the matter.

U.      Decision. In arriving at a decision, the Council may consider any disciplinary action taken within the previous 10 years against the employee, if the information is introduced at the hearing. The Council’s decision shall contain findings of fact and its order for disposition of the case.

Historical Note

New Section adopted by final rulemaking at 6 A.A.R. 2090, effective May 10, 2000 (Supp. 00-2). Amended by

final rulemaking at 9 A.A.R. 1619, effective July 5, 2003 (Supp. 03-2). Amended by final rulemaking at 12 A.A.R.

1756, effective July 2, 2006 (Supp. 06-2).