Arizona Administrative Code › Title 13 - PUBLIC SAFETY › Chapter 5 - Law Enforcement Merit System Council › Article 7 - DISCIPLINE AND APPEALS › Section R13-5-703 - Appeal to the Council by Employees

Current through Register Vol. 30, No. 28, July 12, 2024
A. Appealable actions by employees. An
				employee may appeal any disciplinary action that results in the employee's
				dismissal, demotion, suspension without pay, forfeiture of accrued leave time,
				or reduction of pay.
B. Form of
				appeal. To initiate an appeal, an employee shall submit a signed written appeal
				to the business manager and the agency head. The appeal must state specific
				facts relating directly to the charges on which the appeal is based.
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 by a preponderance of the evidence that it
				had just cause to discipline the employee.
E. Effect of appeal. The Council shall
				determine whether the employing agency has proven by a preponderance of the
				evidence that the employing agency had just cause to discipline the employee.
				The Council shall reverse the decision of the agency head if the Council finds
				that just cause did not exist for any discipline to be imposed and, in the case
				of dismissal or demotion, return the employee to the same position the employee
				held before the dismissal or demotion with or without back pay. On a finding
				that the agency has not proven just cause to discipline the employee by a
				preponderance of the evidence, the Council may recommend a proposed
				disciplinary action in light of the facts proven.
F. Agency action after receiving a decision
				or recommendation. The agency head or the agency head's designee shall accept,
				modify or reverse the Council's decision or accept, modify or reject the
				Council's recommendation within fourteen days of receipt of the findings or
				recommendation from the Council. The decision of the agency head is final and
				binding. The agency head shall send a copy of the agency's final determination
				to the employee.
G.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 14 days before the hearing.
H. Notice of hearing.
				The Council shall notify the parties of the time and place of the
				hearing.
I. 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.
J.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 members 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.
K.Witness fees.
				Witnesses at a hearing, other than employees, are entitled to the fees allowed
				witnesses under A.R.S. §
									12-303.
L. 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 subpoenaed witnesses. An
				employee appearing as a witness on duty shall receive travel expenses from the
				agency and shall not be entitled to witness fees.
M. 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-written 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 head.
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 introduced 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 is filed, no later than 10 business
				days before the hearing, the agency and the employee shall exchange the names
				of all witnessed who may be called to testify. A witness may be interviewed at
				the discretion of the witness. The parties shall not interfere with any
				decision 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 agreeing to be interviewed or for testifying or providing
				evidence in the hearing.
6. 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 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 Council may preclude its use
				at the hearing.