Title 2 . Administration

Chapter 7 . Public Information

Section 440. Appeal procedure in the case of dismissal, demotion, or suspension over 10 consecutive working days, or a total of 30 working days or more in a 12-month period

2 AAC 07.440. Appeal procedure in the case of dismissal, demotion, or suspension over 10 consecutive working days, or a total of 30 working days or more in a 12-month period

(a) A permanent employee in the classified service who is not covered by a collective bargaining agreement, and who is, dismissed, demoted, or suspended for more than 10 consecutive days, or more than a total of 30 working days in a 12-month period may appeal as follows:

(1) within five days following receipt of written notification, the employee may address an appeal in writing to the principal executive officer of the employing agency setting out the reasons for the appeal;

(2) if a satisfactory resolution is not obtained through the decision of the principal executive officer within five working days after the date of the appeal, the employee may appeal the action to the personnel board;

(3) if the action of the principal executive officer is appealed, the personnel board will consider the appeal of the employee; if a hearing is requested, the board will, as soon as practicable, set a date, time, and place for the hearing; the board will give at least two weeks' written notice of the hearing to both the employee and the appointing authority, and will hold the hearing within 60 days after the date of the appeal; the hearing will be closed if requested by the employee; the employee may be represented by counsel at the hearing.

(b) A hearing conducted by the personnel board under (a) of this section will be held in accordance with the following guidelines:

(1) the hearing will be open to the public, unless the issue involves confidential information that is protected under AS 39.25.080 ; the disputing employee may request a closed hearing;

(2) the personnel board will schedule the hearing date as required under AS 39.25.170 ; in its discretion, the personnel board will appoint a hearing officer who shall promptly schedule a pre-hearing conference with the parties; at the pre-hearing conference, the hearing officer may require the parties to submit pre-hearing briefs, and exchange witness and exhibit lists; the hearing officer may set a deadline for filing motions; the hearing officer may provide for and regulate pre-hearing discovery; the hearing officer has the authority to sign subpoenas issued under AS 39.25.175 ;

(3) a party to the appeal may be represented by counsel upon giving written notice to the other parties and to the board or the hearing officer within five working days before the hearing;

(4) all witnesses must be sworn;

(5) the board, or hearing officer will, in its discretion, admit any pertinent evidence, regardless of the existence of any common law, statutory, or judicial rule that may bar the admission of such evidence in a judicial proceeding, if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs; hearsay evidence may be used for the purpose of supplementing or explaining direct evidence, but will not be sufficient in itself to support a finding, unless it would be admissible over objection in a civil action;

(6) at the hearing, each party, commencing with the party who bears the burden of proof, shall present its position and may

(A) utilize oral testimony taken under oath or affirmation;

(B) examine witnesses;

(C) introduce exhibits;

(D) cross-examine opposing witnesses on matters relevant to the issues even though that matter was not covered in the direct examination;

(E) discredit a witness regardless of which party first called the witness to testify;

(F) rebut the evidence against that party;

(G) make closing arguments or submit post-hearing briefs to be determined in the discretion of the hearing officer or personnel board;

(7) pleadings, motions, and other papers must conform to the service procedures set out in the Alaska Rules of Civil Procedure;

(8) upon prior request and approval, witnesses, parties, and their counsel may appear by teleconference;

(9) notwithstanding any provisions in (1) of this subsection, the personnel board will, in its discretion, ask questions of any party or witness at any point during the hearing; in its discretion, the personnel board or the hearing officer may seek additional evidence; all parties to the appeal must be duly notified and given an opportunity to participate in the consideration of additional evidence; the personnel board or the hearing officer may require parties to the appeal and witnesses to remain available to assist in the event additional evidence is sought;

(10) if the hearing is held by a hearing officer, the hearing officer shall issue a proposed decision within 15 working days after the hearing is completed;

(11) unless otherwise contrary to this chapter, all phases of the hearing except the deliberations of the personnel board and the hearing officer shall be recorded;

(12) the personnel board will maintain a record of the proceedings for two years after completion of the action.

(c) If a dispute hearing under this section is held by a hearing officer, the personnel board may adopt the proposed decision in its entirety, or may revise the proposed penalty and adopt the balance of the proposed decision.

(d) If a dispute hearing under this section is held by a hearing officer and the proposed decision is not adopted under (c) of this section, the personnel board, in its discretion, may decide the dispute upon the record including the transcript or tape recording of the earlier hearing, with or without taking additional evidence, or may refer the dispute to the same or another hearing officer to take additional evidence.

(e) If the dispute is referred to a hearing officer for the taking of additional evidence, the hearing officer shall prepare a proposed decision based upon the additional evidence and the record of the earlier hearing. The board will, in its discretion, give the parties the opportunity to present argument, either oral or written, before the board. If oral argument is presented, a board member may not vote unless that member heard the oral argument.

(f) If, in the hearing under (a)(3) or (b) of this section, the board finds that the action complained of was due to discrimination based on race, religion, color, national origin, age, physical or mental disability, sex, marital status, change in marital status, pregnancy, parenthood, political beliefs, or any other reason not related to merit, or in violation of the provisions of the State Personnel Act (AS 39.25) or this chapter, the employee must be reinstated without loss of pay or benefits for the period of dismissal, demotion, or suspension. In all other cases the personnel board will report its findings and recommendations to the appointing authority, the employee, and to the director.

(g) The time limits established in this section may be extended by the director if it is determined that the limits impose undue restrictions upon either party.

History: In effect before 6/28/84; am 6/28/84, Register 91; am 8/24/94, Register 137; am 12/24/98, Register 150; am 10/29/2004, Register 175

Authority: AS 39.25.070

AS 39.25.140

AS 39.25.150

AS 39.25.170

Editor's note: The 8/24/94 repeal and readoption of 2 AAC 07.440 first appeared in print in the Alaska Administrative Code with Register 137 (April 1996).

Even though the repeal and readoption of 2 AAC 07.440 was effective 10/29/2004, it was not published until Register 175, Oct. 2005.