Section 17045 - Appeals from Program Employee's Disciplinary Action(a) A Program employee may appeal a Disciplinary Action to the Department within 30 calendar days of the date on which the Disciplinary Action became effective. The appeal must be in writing and need not be in any particular form but shall include a description for the basis of the appeal and the relief requested by the appellant. The Department shall ensure that the Local Agency receives a copy of the appeal and all materials provided by the appellant. The appeal does not delay the effective date of the Disciplinary Action.(b) The Director shall designate a Hearing Officer who is an Administrative Law Judge to hear the appeal and prepare a proposed decision for the Director's consideration. The Hearing Officer shall preside over all aspects of the hearing, may grant or refuse extensions of time, set the hearing dates, conduct the hearing and administer oaths to witnesses, rule on the submission of evidence, request additional evidence or the submission of documents by the parties, including legal briefs, and perform any and all other acts in connection with the hearing that may be necessary. Hearings are public, although witnesses may be excluded, unless the Hearing Officer determines that it is appropriate to close the hearing.(c) Each party shall have these rights: to call and examine witnesses; to be represented by counsel or another representative of their choosing; to request the issuance of subpoenas and subpoenas duces tecum; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issue, even though that matter was not covered in the direct examination; and to impeach any witness regardless of which party first called the witness to testify. The party with the burden of proof shall have the opportunity to rebut the evidence.(d) If an appellant does not testify on his or her behalf, the appellant may be called and examined as on cross-examination by the Local Agency. The hearing need not be conducted according to technical rules of evidence. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Hearsay evidence shall be admitted and may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it is the type of hearsay admissible over objection in a civil action. The rules of privilege shall be effective to the same extent to which they are now or may hereafter be recognized in civil actions. Irrelevant and unduly repetitious evidence may be excluded.(e) The Local Agency shall have the burden of proving by a preponderance of evidence that the Disciplinary Action is supported by the evidence and that proper procedures were followed.(f) The Department shall issue a decision within 90 calendar days of submission of all of the evidence or other information requested by the Hearing Officer and shall provide the decision to both parties. The decision may uphold the Disciplinary Action in all respects, or modify the penalty assessed to a lower level of discipline if a lesser penalty is available under the Local Agency Personnel System.(g) After 30 calendar days, the decision shall be binding on the Local Agency and is the final administrative decision in the matter. Notwithstanding the above, within 30 calendar days after service of a copy of a decision, any party may file a petition for rehearing with the Department. The petition shall be in writing and shall contain all the grounds upon which the party requesting rehearing believes the petition should be granted. Within 30 calendar days after such a filing, the Department shall serve a copy of the petition on the other parties to the proceeding. Within 60 calendar days after service of the petition for rehearing on the non-requesting parties, the Director shall either approve or deny the petition in whole or in part. Failure to act upon a petition within this 90 calendar day period shall be deemed a denial of the petition. If a petition for rehearing is granted, the matter may be set for rehearing or the Department may reconsider the appeal based solely upon the existing record and arguments provided by the parties. The Hearing Officer shall determine the scope, procedures, and the schedule for any subsequent proceedings.Cal. Code Regs. Tit. 2, § 17045
1. New section filed 6-23-2016; operative 6-23-2016. Submitted to OAL for filing and printing only (Register 2016, No. 26). Note: Authority cited: Sections 19800, 19801, 19803 and 19811, Government Code. Reference: Sections 19803 and 19805, Government Code.
1. New section filed 6-23-2016; operative 6/23/2016. Submitted to OAL for filing and printing only (Register 2016, No. 26).