Imperial County Municipal Code Ch. 3.64 Employment Appeals Board

There is created an employment appeals board for the county of Imperial which shall serve as a review body for all employment appeals matters within the jurisdiction of the board as provided for in Section 3.64.040. It is the intent and purpose of the board of supervisors in creating the board to provide for an independent appeals board with the authority to resolve appeals by job applicants and county employees of actions affecting their employment rights.

(Prior code § 24975)

A. The employment appeals board shall be composed of five members and five alternative members all of whom shall be persons who are residents of the county of Imperial not employed in any capacity by the county of Imperial. The members shall possess some expertise in terms of academic training and/or work experience in business administration, public administration, personnel administration, labor relations, equal employment opportunity or affirmative action employment programs, or law. At least two members and two alternate members shall be persons of Spanish-surname, Negro, American Indian, or Asian descent or females.

B. One member and one alternate shall be appointed by each member of the board of supervisors. The alternate shall serve on the employment appeals board in the absence of the member for whom such alternate is designated to serve. A supervisor shall make an appointment in writing by filing a notice with the clerk of the board of supervisors, who shall place it on the next public agenda as public information item.

C. The term of office of each employment appeals board member and alternate shall commence the date the member is appointed and shall run concurrently with the term of office of the supervisor who appointed the member of alternate. Should the appointing supervisor leave office for any reason, the appointment of each employment appeals board member appointed by the supervisor shall expire when the supervisor leaves office, and the successor supervisor shall appoint a person to serve the balance of the unexpired portion of the term. An appointee whose term has expired shall serve until his or her successor is appointed. The supervisor making the appointment shall have the power to remove the appointee from the employment appeals board. If the supervisor chooses to remove an appointee, the supervisor shall do so in writing by filing a notice with the clerk of the board of supervisors, who shall place it on the next public agenda as a public information item.

D. Notwithstanding subsections B and C of this section, the board of supervisors, by a four-fifths vote, may remove any member or members of the employment appeals board.

(Prior code § 24976)

All members and alternate members of the employment appeals board shall be compensated for their services to the county as determined from time to time by the board of supervisors for each meeting actually attended in the conduct of an official employment appeals review. Additionally, all members and alternate members shall be reimbursed for travel expenses on the basis of actual miles driven to and from such hearings from and to their places of residence, and shall receive the same per mile allowances received by county employees.

(Ord. 1385 §§ 1, 2, 2004)

A. The employment appeals board shall conduct reviews to make factual determinations and decisions pertaining to requests for review which meet the requirements of Section 3.64.050, for the following matters:

1. Denials of certification of applications by the county department of human resources;

2. Selection standards or procedures utilized by the county department of human resources or county departments in ranking certified applicants and in making appointments for county employment;

3. Any dismissal, suspension or demotion of a permanent employee;

4. Any failure to hire a job applicant or any employment decision affecting a probationary or permanent county employee wherein the applicant or employee alleges that the action was based on pregnancy, childbirth or related medical conditions;

5. Any layoff or separation from service of a permanent employee, except for a limited term employee, pursuant to a reduction in force program;

6. The decision of a department head concerning an employee grievance covered by the county's grievance procedure, if the employee has complied with all the provisions of the grievance procedure;

7. Allegations of discrimination based on race, color, ancestry, national origin, creed, religion, sex, age, physical handicap, political affiliation or beliefs, or medical condition, if the complaining party has attempted to resolve the complaint with the county's affirmative action officer, and that officer recommends that a hearing be conducted by the board pursuant to the provisions of Section 3.64.060(B).

B. Appeals involving county-wide employment policies and procedures, county-wide employment standards and job audit and classification studies shall be directed to and resolved by the board of supervisors.

C. All appeals involving decisions made pursuant to the provisions of the Imperial County Medical Evaluation System shall be controlled by the jurisdictional and procedural requirements of Section 3.24.270.

(Prior code § 24978)

A. All request for review shall be preceded by an attempt by the complainant to resolve the matter complained of on an informal basis with the department head or acting department head involved and shall only be commenced thereafter in instances wherein the latter officer has not been able to resolve the subject matter to the satisfaction of complainant.

B. The employment appeals board shall review and decide only those matters authorized in Section 3.64.040. The board shall review such matters only upon receipt of a written request for review which meets all of the following prerequisites:

1. The request is dated and signed by the complaining party (hereinafter the "complainant");

2. The request involves a specifically identifiable action which has had a personal adverse effect upon the complainant;

3. The request indicates that an attempt has been made to resolve the matter complained of on an informal basis with the department head or acting department head involved and the latter officer has not resolved the subject matter to the satisfaction of complainant;

4. The request provides a complete and accurate mailing address of complainant for purposes of effecting official communications herein provided for by this chapter;

5. If the request alleges discrimination pursuant to Section 3.64.040(A)(6), a copy of the request is filed with the county's affirmative action officer at the time the request is filed with the director of human resources, pursuant to subsection C of this section.

C. The request for review must be received by the county's director of human resources within ten (10) working days following the date of the occurrence of the action complained of. Failure to so file a request for review shall be deemed a waiver of the right to a review before the employment appeals board.

D. The director of human resources may deny a request if it fails to state specific facts and reasons therefor. Denial of a request for review shall be made by written notice from the director of human resources to the complainant, and such notice shall contain the reasons for the denial. Such denial shall be without prejudice to the filing of an amended request for review, providing such amended request for review is filed with the director of human resources within ten (10) working days from the date the denial is placed in the mail to the complainant. The complainant further shall have the right to appeal to the employment appeals board in all instances wherein the director of human resources has denied his or her request for review pursuant to the provisions of this subsection, provided such appeal shall be submitted in writing to the director of human resources within ten (10) working days from the date the denial is placed in the mail to the complainant.

(Prior code § 24979)

A. In cases of dismissal, suspension or demotion of a permanent employee, a timely request for review by formal hearing shall be granted by the director of human resources if the request generally denies the allegations of the notice of dismissal, suspension, or demotion.

B. In cases alleging discrimination pursuant to the provisions of Section 3.64.040(A)(7), a timely request for review by formal hearing shall be granted by the director of human resources if the county's affirmative action officer recommends in a report of investigation to the director of human resources that a hearing be conducted by the board. The affirmative action officer shall submit such report of investigation to the director of human resources within ten (10) working days following the receipt of the request for review by the director of human resources. If in his or her investigation the affirmative action officer finds that factual determinations need to be made to resolve particular allegation of discrimination, the officer shall recommend that a hearing on the matter be conducted by the board. If the county's affirmative action officer does not recommend such a hearing, the officer shall either recommend denial or the appeal or recommend appropriate actions for resolving the subject appeal, and such recommendations shall be implemented by the appropriate county officers. Upon receipt of the report of investigation of the affirmative action officer, the director of human resources shall inform the complainant either: (1) that the appeal has been denied, and the reasons therefore; (2) that certain recommendations are being implemented to resolve the appeal, and specify the same; or (3) that a formal hearing before the board has been scheduled, specify the date for the hearing, and otherwise comply with provisions of Section 3.64.080. The complainant shall have the right to request a further review by the employment appeals board in all instances wherein the affirmative action officer has recommended denial of his or her appeal, provided such request for further review shall be submitted in writing to the director of human resources within ten (10) working days from the date the denial is placed in the mail to the complainant.

C. In all other cases, the director of human resources may, in his or her discretion, grant a formal hearing before the employment appeals board, or grant a review based on written materials in accordance with the procedures set forth in Section 3.64.070. In all instances wherein the director of human resources has granted a review based on written materials, the complainant shall have the right to request a formal hearing by the employment appeals board provided such request for a formal hearing is submitted in writing to the director of human resources within ten (10) working days from the date a notice of grant of review based on written materials was placed in the mail to the complainant. In such instances, the employment appeals board shall act upon such request for a formal hearing at the time it initiates its review based on written materials in accordance with the provisions set forth in Section 3.64.070.

(Prior code § 24980)

A. In making a decision on the merits of a review based on written materials, the employment appeals board shall consider only materials to which the parties have had access and to which they have had adequate opportunity to submit a rebuttal, other than any materials the confidentiality of which are protected by law.

B. The director of human resources shall, within five working days after receipt of such a request, deliver a copy thereof to the department head and other county officials involved. The director of human resources shall therein notify such department head and other county officials that an answer to the request shall be prepared and delivered to the complainant within ten (10) working days, and that a copy of the answer shall be filed with the director of human resources.

C. The answer to the request for review shall contain a written statement of the authorized policies or procedures upon which the action complained of was based, specifying any additional facts or information upon which the department head relies to justify the action. The answer shall notify the complainant that supplementary written materials may be filed with the director of human resources within ten (10) working days from the date the answer is received by the complainant.

D. After the expiration of the time periods for filing written materials with the director of human resources, the director of human resources shall schedule a meeting of the employment appeals board to review all written materials on file. Such meeting of the board shall be held within thirty (30) calendar days after the expiration of the filing time periods specified hereinabove.

E. The employment appeals board shall make its findings and decision in compliance with the provisions of Section 3.64.090.

(Prior code § 24981)

All hearings of the employment appeals board shall be conducted pursuant to the following rules and procedures:

A. Notice of Hearing. Upon receipt of a request for review which qualifies for a formal hearing pursuant to the provisions of Section 3.64.060, the director of human resources shall, within five working days after receipt of such request, deliver a copy thereof to the department head and other county officials involved and shall arrange for a hearing by the employment appeals board. The hearing shall be scheduled to be held within fifty (50) calendar days from the date the request for hearing was received. The director of human resources shall immediately notify all members of the board, the complainant, and the department head of the date, time and place of the hearing.

B. Answer to Request for Hearing. Within fifteen (15) working days after the request for hearing is filed with the director of human resources, the department head shall deliver to the complainant a written statement of the authorized policies or procedures upon which the action complained of was based, specifying any additional facts or information upon which the department head relies to justify the action. The department head shall immediately file a copy of the answer with the director of human resources.

C. Accusation—Notice of Defense (Disciplinary Actions Only). If the request for hearing involves a disciplinary action, the department head shall deliver to the complainant an answer in the nature of an accusation. The accusation shall consist of a written statement of the authorized cause or causes for the action, specifying under each cause the particular facts upon which the department relies to justify the action. The accusation shall contain a statement that the complainant shall within ten (10) working days file with the director of human resources a written notice of defense, and further, that if the complainant fails to so file a notice of defense, complainant waives the right to a hearing before the employment appeals board. The accusation further shall include a statement that the complainant has a right to obtain the names and addresses of witnesses and an opportunity to inspect and copy any relevant written materials in the possession, custody or control of the department, and the statement shall provide the name and address of the departmental contact person for purposes of obtaining such information or materials. Nothing herein shall authorize the inspection or copying of any writing or thing which is privileged from disclosure by law.

The complainant shall file with the director of human resources within the time limit provided for hereinabove, a notice of defense which may object to the accusation upon the grounds that it does not state acts or omissions justifying the department's action, that the accusation is so indefinite and uncertain that he or she cannot identify the actions or omissions or prepare his or her defense, admit the accusation in whole or in part, or present new matter by way of defense.

The complainant shall be entitled to a hearing on the merits if he or she so files a notice of defense and any such notice shall be deemed a specific denial of all parts of the accusation not expressly admitted.

Failure to file such notice of defense shall constitute a waiver of complainant's right to a hearing before the employment appeals board. The director of human resources, upon request by the complainant, may excuse the late fi1ing of the notice of defense by complainant, if, in his or her discretion, the director of human resources finds that such action is justified on the basis of mistake, surprise, inadvertence or other appropriate excuse. If the complainant does not file a notice of defense as specified, the hearing shall be canceled, the action of the department head shall be final, and the parties shall be so notified by the director of human resources. When a notice of defense contains an objection that the accusation is indefinite and uncertain, the director of human resources shall prepare a statement of supplementary facts responsive to the objection, and, if he or she does not determine, shall immediately determine whether the department head shall require that the department head prepare and deliver to him or her such a supplementary statement, with a copy to the complainant, within five working days from the date the director of human resources received the notice of defense from the complainant.

D. Hearing Procedures. The hearing shall be private unless the complainant, at least two days before the hearing date, files with the director of human resources a request that the hearing be public. The complainant may, but need not be, represented by counsel.

The chairperson of the board shall rule on matters of evidence and shall determine matters of procedure, except that the case in support of the answer shall normally be presented first. Oral evidence shall be taken only on oath or affirmation.

The hearing need not be conducted according to technical rules relating to the rights of parties, evidence and witnesses. The complainant may be called and examined as to any matter upon which evidence has been previously offered and received. 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 may be used to supplement or explain other evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The rules of privilege shall be effective to the extent that they are otherwise required by statute to be recognized.

It shall be the duty of any department head or employee to attend and testify upon the request of any party.

The board may independently summon any officer or employee to testify, and require production of any relevant record from any department. The chairperson of the board shall have the power to issue subpoenas to require the attendance at the hearing., as a witness of any person who is a resident of the county of Imperial, at the request of any party. The chairperson of the board may delegate his or her power to issue such subpoenas to the office of the county counsel of the county of Imperial.

(Prior code § 24982)

Within five working days after the informal review or formal hearing is completed, the board shall file with the director of human resources its findings as to each cause and factual allegation in the answer and its decision affirming, revoking or modifying the action of the department head. The decision shall be filed with the director of human resources. The director of human resources shall notify the parties of the decision, in writing.

If the decision involves alleged discrimination, the decision of the board shall make an express finding as to such allegation, and if the board determines that such discrimination did in fact occur, the decision of the board shall also determine the appropriate relief for complainant. Such relief as determined by the board shall, subject to the approval of the board of supervisors, be provided to complainant.

(Prior code § 24983)

The department head shall comply with the decision of the employment appeals board. If compliance involves restoration to a position after termination or during a period of suspension, the employee shall forthwith be restored to his or her position with all rights and privileges and full pay for uncompensated time lost consistent with the decision. To the extent that such lost time resulted from a completed or partially completed suspension it shall be paid for. If compliance involves hiring a job applicant, or promoting an employee, the applicant or employee shall be so hired or promoted.

(Prior code § 24984)

All requests for review, reports of county department heads, and other county officers and employees, other written materials; documents, records and notices utilized pursuant to the provisions of this chapter, and the final decisions of the employment appeals board filed with the director of human resources shall be deemed to be confidential records and shall not be disclosed to the public unless permission is obtained for such disclosure from the complainant. If the complainant requests a public hearing pursuant to the provisions of Section 3.64.080(D), then all the aforestated records and reports shall be deemed to be public records, and the director of human resources shall file the final decision of the employment appeals board in the matter with the clerk of the board of supervisors. Any violation of the above requirements of confidentiality, in and of itself, shall not in any manner be construed as affecting the validity of any hearing of proceedings conducted pursuant to this chapter.

(Prior code § 24985)

Any notice required by this chapter shall be deemed given when personally delivered to the person to whom it is directed or when deposited in the United States mail, registered or certified, postage prepaid and addressed to the person at such person's last known address.

(Prior code § 24986)