41-785
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41-785. Appeals to the personnel board; notice of charges; hearings A. Any employee who has completed the employee's original probationary period of service as provided by the personnel rules may appeal to the personnel board seeking relief from dismissal from state service, suspension for more than forty working hours or demotion resulting from disciplinary action. The appeal shall be filed not later than ten working days after the effective date of such action. The employee shall be furnished with specified charges in writing when the action is taken. Such appeal shall be in writing and must state specific facts relating directly to the charges on which the appeal is based and shall be heard by the personnel board within thirty days after its receipt. The personnel board shall provide the employing agency with a copy of the appeal not less than twenty days in advance of the hearing. B. Hearings on such appeals shall be open to the public, except in cases where the employee requests a confidential hearing, and shall be informal with technical rules of evidence not applying to the proceedings except the rule of privilege recognized by law. Both the employee and the employing agency shall be notified of any hearing or meeting date not less than twenty days in advance of the hearing or not less than ten days in advance of a meeting and may select representatives of their choosing, present and cross-examine witnesses and give evidence before the personnel board. The personnel board may appoint a hearing officer to conduct the hearing and take evidence on behalf of the board and exercise the rights prescribed by section 12-2212. The personnel board shall prepare an official record of the hearing, including all testimony recorded manually or by mechanical device, and exhibits. Either party may request that the record be transcribed. If a party requests that the record be transcribed, an entity, other than the personnel board, selected by the requesting party shall transcribe the record at the cost of the requesting party. If the disciplinary hearing would involve evidence the state is prevented by law from disclosing, then a confidential hearing upon the state's request shall be granted. C. The board may reverse an agency's action on appeal only if the board finds the action to be arbitrary, capricious or otherwise contrary to law. D. The board may modify the disciplinary penalty chosen by an agency only if the board finds the penalty to be disproportionate to the proven offense in light of mitigating circumstances or made for reasons that are arbitrary, capricious or otherwise contrary to law. E. Within forty-five days after the conclusion of the hearing, the board shall enter its decision and shall at the same time send a copy of the decision by certified mail to the employing agency and to the employee at the employee's address as given at the hearing or to a representative designated by the employee to receive a copy of the decision. F. Any party may appeal the decision of the board pursuant to title 12, chapter 7, article 6 to the superior court in the employee's county of residence on one or more of the following grounds that the order was: 1. Founded on or contained error of law which shall specifically include error of construction or application of any pertinent rules. 2. Unsupported by any evidence as disclosed by the entire record. 3. Materially affected by unlawful procedure. 4. Based on a violation of any constitutional provision. 5. Arbitrary or capricious. G. An appeal shall be available to the court of appeals from the order of the superior court pursuant to title 12, chapter 7, article 6 as in other civil cases. H. An employee may represent himself or designate a representative, not necessarily an attorney, before any board hearing or any quasi-judicial hearing held pursuant to this section providing that no fee may be charged for any services rendered in connection with such hearing by any such designated representative who is not an attorney admitted to practice. |