Classified employees have the right to appeal disciplinary action to the appropriate commission. The civil service department may have an appeal form or a letter may suffice; check the rules. Disciplinary action must generally be appealed within the time limits and in the manner specified by the applicable statute or rule.1 If the AA is at fault for your client missing the deadline, proof of a rule violation or equitable argument such as contra non valentem may be held to suspend the running of the appeal period.
What to include in an administrative appeal? Review the system’s rules. In some cases a simple statement that the client wants to appeal a particular adverse action could be enough. But clients seeking a reduction in penalty in the alternative should explicitly request it, and clients alleging discrimination or retaliation must usually plead it specifically enough that the AA can prepare a defense.2 Attorney fees can also be requested. Remember that certain claims can’t be raised within a civil service employee appeal. If your client filed an appeal before reaching you, review its adequacy as soon as possible and amend if necessary (and it is still possible to do so).
State and city civil service commissions are constitutionally authorized to appoint referees or hearing examiners to conduct hearings on appeals. Depending on the system, these officers may have the power to make decisions (which may then be appealed to the full commission) or merely the power to make reports and recommendations to the commission (which makes the actual decision). Learn the rules applicable to the system with which you are dealing, as the options available and time limits for exercising them will vary. Whether you’ll want to present your own witnesses or documentary evidence will depend on the facts of your case and who carries the burden of proof. While hearsay and other incompetent evidence may be admissible at hearing, make objections as appropriate. If you fail to make an evidentiary objection at hearing, a court may find it waived.
On reversal or modification of AA action, an employee should be reinstated to the former position; receive back pay, benefits, and emoluments; and have attorney fees awarded if requested. Consult current law to determine which benefits and emoluments can be recovered, but these should include merit-step increases, supplements or bonuses, leave time that would have accrued, pay for overtime that would have reasonably been required, and private health insurance. It is usually acceptable for system rules to set off wages (earned during what would have been your client’s work hours), but check the current law.