Rule 10 - Separations and Suspensions
Effective December 4, 2017
Table of Contents for Rule 10
- Section 10.1 - Separations
- Section 10.2 - Resignations
- Section 10.3 - Dismissals
- Section 10.4 - Suspensions, Demotions, Reductions in Pay
- Section 10.5 - Procedures for Dismissal, Reduction in Salary Step, Suspension or Involuntary Demotion of Officers or Employees who have Permanent Status
Read next: Rule 11 - Layoffs
Section 10.1 - Separations
An appointing authority may separate any employee in accordance with these rules. All separations shall be promptly reported to the Human Resources Director on standard forms prescribed by him/her.
Section 10.2 - Resignations
- Resignation in Good Standing
In order to resign in good standing, an employee shall give written notice of his/her resignation to the appointing authority not less than two weeks prior thereto, unless the appointing authority consents to shorter notice. Such resignation shall be deemed accepted upon its submission. With the written approval of the appointing authority, a resignation may be rescinded at any time prior to the effective date of the resignation.
- Automatic Resignation
An employee who is absent without approval or authorization for three (3) consecutive working days may be separated as an automatic resignation. Before an employee can be terminated under this automatic resignation rule the County must:
- Send written notice of the proposed automatic resignation and the facts upon which the automatic resignation is based to the employee's last known address
- The written notice must also inform the employee that he/she has the right to present information and facts within 10 working days to an impartial decision maker if the employee challenges the accuracy of the underlying facts
Automatic resignations are not eligible for post termination appeals before the Civil Service Commission unless the employee can demonstrate to the Commission by a preponderance of the evidence that there are material issues of fact in dispute regarding whether the employee's absence was pre-approved and/or justified.
Section 10.3 - Dismissals
- Dismissal of Permanent Employee
Any employee who has attained permanent status may be dismissed for reasonable cause including, but not limited to:
- unauthorized absence;
- conviction of a felony or of any criminal act involving moral turpitude;
- conduct which brings discredit to the County;
- disorderly conduct;
- incapacity due to mental or physical disability to the extent permitted by law;
- willful concealment or misrepresentation of material facts in applying for or securing employment;
- incompetence or inefficiency;
- willful disregard of a lawful order from a duly constituted authority;
- willful disregard of a departmental policy and/or laws regarding the confidentiality of records;
- using, being in possession of, or being under the influence of alcohol, narcotics, intoxicants, drugs, or hallucinatory agents while on County property or in vehicles during working hours or reporting to work under such conditions, or abuse of alcohol or drugs while in County uniform. Possession and proper use of drugs prescribed by a licensed physician and appropriate possession of unopened alcoholic beverages are not prohibited by this section.
- neglect of duty;
- negligence or willful damage to public property or waste or theft of public supplies or equipment;
- willful violation of the Civil Service Ordinance or of these rules;
- failure to meet reasonable work performance standards and requirements;
- refusal to comply with a proper directive to undergo a medical examination as issued by an appointing authority;
- hostile and discourteous treatment of the public or other employee;
- falsification of any records, such as medical forms, time cards or employment applications, or making material dishonest work-related statements to other employees at work or committing perjury;
- unauthorized use of County vehicles and equipment;
- conviction of driving under the influence, reckless driving, or hit-and-run driving whether on or off the job, in a County vehicle;
- unauthorized possession of weapons or explosives on County premises;
- willful carelessness or violation of safety rules and regulations which jeopardize the safety of others and/or which could result in bodily injury to others or damage to County property;
- sexual harassment of or unlawful discrimination against another employee or applicant for employment.
- Dismissal of Probationary Employee
- A probationary employee may be dismissed at any time during the probationary period without right of appeal or hearing. Nothing in this subsection is intended to affect the right of a probationary employee to file a complaint alleging unlawful employment discrimination pursuant to Board of Supervisors Resolution #87-1039 dated June 9, 1987.
- An employee who is dismissed (released from probation) during a probationary period shall be restored to any class from which he/she had permanent or probationary status immediately prior to the dismissal. (revised 7/1/10)
- Should such restoration necessitate the displacement or separation of another employee, the displaced employee shall have displacement rights in accordance with Rule 11. (revised 7/1/10)
- Should such restoration necessitate the displacement or separation of another employee in a department in which there is more than one employee in the class in which the separation is necessitated, the employee to be separated shall be determined in accordance with the order of layoff.
- In the event the restoration necessitates separation of another employee, the County will make an effort to facilitate a transfer or voluntary demotion for the displaced employee to a job class for which he/she meets the minimum qualifications. (revised 7/1/10)
- An employee who is separated during his/her probationary period but who also previously attained permanent status in the Classified Civil Service without an intervening break in continuous employment with the County may only be dismissed for cause.
- Dismissal of Unclassified Employee
An unclassified employee may be dismissed at any time without right of appeal or hearing except as may otherwise be provided by law, ordinance, or rule.
Section 10.4 - Suspensions, Demotions, Reductions in Pay
Any employee may be suspended without pay, reduced in pay and/or demoted for any of the reasons provided by these rules for dismissal. No suspension shall exceed two hundred and forty consecutive working hours. A reduction in pay is defined as a reduction in the hourly pay rate for hours worked which is no more than five (5) percent of the employee's salary step prior to the reduction and shall not exceed 1040 hours in duration. (revised 10/18/95)
Section 10.5 - Procedures for Dismissal, Reduction in Salary Step, Suspension or Involuntary Demotion of Officers or Employees who have Permanent Status
- A department head who proposes to dismiss, suspend, or involuntarily demote an officer or employee who has permanent status in the classified Civil Service shall, prior to taking such action, serve notice of the proposed action on the affected person. The notice shall be in writing and shall include the reasons underlying the proposed action, a copy of the charges and materials upon which the proposed action is based, and notification that the employee has the right to respond, either orally or in writing, to the department head.
The officer or employee shall be given an opportunity to respond to the department head before the disciplinary action is taken. The officer or employee may affirmatively waive the right to respond. Responses, if made, may be oral or in writing and shall be communicated to the department head at a reasonable time and place designated by the department head. The department head shall give the officer or employee at least three working days following the day of service of the Notice of Intended Action in which to prepare and communicate a response. If it is unreasonable to prepare and communicate a response within such three day period, then the department head shall grant such additional time as may be reasonable. The right to respond will be deemed waived unless the response is prepared and communicated within the time set by the department head.
The department head may place the affected officer or employee on leave of absence with pay during the response period. The department head shall consider the response, if any, of the officer or employee in determining the propriety and nature of disciplinary action.
- Any officer or employee of the Classified Civil Service may be dismissed, reduced in compensation, suspended, or demoted for cause as provided in Section 10.3 of the Civil Service Ordinance. (revised 6/1/00)
- The order of the appointing authority shall be in writing, and shall simply identify the name of the employee, the nature of the disciplinary action taken and the effective date of such action. A statement specifically explaining the reasons for the action shall be attached as a separate document to the order and shall be incorporated by reference into the order.
- The order, without the statement of reasons attached thereto, shall be filed with the Clerk of the Board of Supervisors with a copy to the Human Resources Director and a copy thereof together with a statement of reasons required in subsection B (1), shall be personally served on the employee, or mailed to him/her postage prepaid by registered or certified mail at his/her address as shown in the County personnel records. The order shall advise the employee of his/her appeal rights as set forth in subsection (5). An Affidavit of service of the order in statement of reasons on the employee shall be filed with the Clerk of the Board of Supervisors within five (5) days of service.
- The order shall be effective upon filing of the order with the Board of Supervisors unless a later date is set forth in the order.
- The employee may file a reply in writing with the Clerk of the Board of Supervisors with a copy to the Human Resources Director within ten (10) regular County business days after the date of filing the order of the appointing authority.
- The employee may appeal to the Civil Service Commission from the order of the appointing authority by filing a written notice of appeal with the Clerk of the Board of Supervisors with a copy to the Human Resources Director. This notice must be filed within five (5) regular County business days of the receipt after the presentation of the order by the employee if personally served, or within seven (7) regular County business days of the date of the order.
- The Clerk of the Board of Supervisors shall forthwith transmit the order and appeal to the Civil Service Commission for hearing.
- In the case of an employee resignation where the employee asserts that the resignation was coerced or secured on any basis other than a voluntary decision on the employee's part to separate from County service, the employee may appeal the resignation to the Civil Service Commission. Appeals under this subdivision must be made by filing a written notice of appeal with the Clerk of the Board of Supervisors within seven (7) regular County business days from the date upon which the appointing authority informs the employee that the resignation is accepted. Rule 10.5.B(7) is not applicable to automatic resignations (see Section 10.2.B).
- Appeal to Commission
- Within twenty (20) regular County business days after the filing of the appeal, Human Resources Director shall begin the Civil Service Commission hearing process on the order and appeal by holding a prehearing conference. Within twenty (20) regular County business days thereafter, the matter shall be brought before the Civil Service Commission. If no settlement has occurred, the Civil Service Commission shall schedule a date for a full evidentiary hearing on the order and appeal therefrom or shall refer the matter to a hearing officer. The appellant has the right to an open or closed hearing. (revised 6/1/00)
- Prehearing Conferences
- Each party appearing in any case shall attend the prehearing conference with their respective counsel, if any, and shall have a thorough knowledge of the case, be prepared to discuss it to make stipulations or admissions where appropriate, and attempt to resolve the appeal if possible.
- The parties, or their respective representatives, are encouraged to confer in person or by correspondence before the date assigned for the prehearing conference to reach agreement upon as many matters as possible.
- At the prehearing conference, each party shall attempt to identify to the other and to the Secretary of the Commission the documents which they will seek to introduce at the time of the hearing, as well as a tentative witness list. (revised 6/1/00)
- At the time of the conference, the parties will try to simplify the actual and legal issues involved in the appeal. The parties shall also use their best efforts to stipulate to admissions of fact, and of documents, as will avoid unnecessary proof. At the time of the conference, the parties shall also be prepared to give their best estimation of the time necessary for the hearing of the appeal.
- The failure of any person to prepare reasonably for, appear at, or participate in good faith in a prehearing conference as required by these rules, unless good cause is shown for that failure, is in interference with the proceedings of the Commission. Upon such failure, the Commission may order an appropriate change in the calendar status of the action.
- At the first session of the Civil Service Commission on the hearing of the appeal, the counsel for the appointing authority and the employee or his/her designated representative, shall give their respective time estimates to the Commission. Such time estimates shall set forth the estimated amount of time it will take to conduct a full evidentiary hearing on the appeal. If the time estimate exceeds two and one- half (2½) regular County business days for an appeal stemming from a suspension or reduction in rank, the Commission may, in its discretion, refer the appeal to a hearing officer. If the Commission recommends referral to a hearing officer, it shall notify the Board of Supervisors, and continue the hearing until a later date to ascertain whether the Board of Supervisors will approve the referral. If the Board of Supervisors approves the referral to a hearing officer, the Commission shall further continue the hearing on the calendar to permit setting the hearing before a hearing officer.
Hearings conducted before a hearing officer pursuant to this subsection shall be conducted in accordance with those procedures set forth in subsection H of this rule with the following exception:
The hearing shall be reported by a certified court reporter who shall prepare a transcript of the proceedings. The transcript of the proceedings, together with the proposed decision and findings of the hearing officer, shall be transmitted to the Commission. The Commission shall independently review both the transcript and the proposed findings and decision. After a review of the transcript, findings and proposed decision, the Commission may adopt the proposed decision and findings in their entirety, reject the proposed decision and findings or reduce the proposed penalty and adopt the balance of the proposed decision and findings. The decision of the Commission shall be final.
The procedures set forth in subsection I of this rule shall not be applicable to hearings referred pursuant to this subsection.
- Regardless of the estimated length of the hearing, the employee may request that the appeal be heard by a hearing officer, or the appointing authority may make such a request, and if consented to by the employee, the Commission shall determine whether to recommend referral of the appeal to a hearing officer. If the Commission recommends referral to a hearing officer, it shall notify the Board of Supervisors, and continue the hearing until a later date to ascertain the decision of the Board of Supervisors. If the Board of Supervisors approves the referral to a hearing officer, the Commission shall further continue the hearing on its calendar to permit setting the hearing before a hearing officer. The procedure to be used in connection with such hearing is set forth in subsection H of this rule.
- If the Commission determines not to refer the hearing to a hearing officer, or if the Board of Supervisors does not approve a request, then the Commission shall hear the appeal pursuant to the rules hereinafter set forth.
The appointing authority may, with the permission of the Commission, amend the order of dismissal, suspension or reduction. The amendments shall relate to matters occurring prior to the effective date of the order of dismissal, suspension or reduction. The employee may be granted a reasonable continuance to prepare a defense to any new matter contained in such amendment. Any amendment by the appointing authority is deemed denied by the employee.
- Motions and Exchange of Evidence
Motions by either party shall be in writing and if based on factual matters, shall be supported by a declaration under penalty of perjury, and a proof of service. Motions shall be served on the opposing side and filed with the Secretary of the Commission and its counsel no later than ten (10) County business days prior to the date of hearing of the motion. Motions shall be heard at regularly scheduled Commission meetings. Failure to reply within the time requirements set forth in this subsection shall be grounds for the denial of the motion.
- Exchange of Evidence
No later than twenty (20) County business days prior to the date of hearing or such other time as designated by the Commission, each party shall submit to the other party and to the Secretary of the Commission and its counsel, a list of witnesses it intends to call at the hearing, a narrative description of the testimony of each witness, and a list of documents the party intends to introduce into evidence at the hearing. Failure to comply with this subsection may be grounds for the exclusion of the narrative or documentary evidence not included in the lists set forth herein
- Motion for Additional Information or Discovery
Further requests for information or discovery shall be made by motion with reasonable cause shown.
The Commission may issue subpoenas for the attendance of witnesses at hearings or depositions. Any party requesting subpoenas must submit to the Commission the name of the witness and the title of the proceeding and time for appearance of the witness. Upon the request of a party, the Secretary, the Assistant Secretary or the Chairperson of the Commission may issue a subpoena in the name of the Commission. When an appeal has been referred to a hearing officer, the hearing officer may issue subpoenas in the name of the Commission for the attendance of witnesses before the hearing officer. The party requesting the subpoena has the responsibility to serve the subpoena on the witness. (revised 12/3/09)
The Commission may grant first requests for continuances of scheduled hearings when reasonable. A second continuance request must be in writing and show good cause why the matter could not be resolved before the hearing. Continuance requests must be received by the Human Resources Director at least five (5) County business days preceding the hearing, except in an emergency. Any cancellation costs of meeting rooms, hearing officer or court reporter due to inadequate notice may, at the order of the Commission, be borne by the party requesting the continuance. (1/20/00)
- Settlements and Cancellations
When the parties to an appeal settle the matter in advance of the hearing, they shall give the Civil Service Commission at least five (5) County business days advance notice. If the settlement occurs with less than five (5) business days notice, the parties shall be required to be present at the hearing as scheduled to confirm the appeal has been settled. (1/20/00)
- Hearings Before the Commission
When an appeal is heard by the Commission rather than a hearing officer, a majority of the Commission shall constitute a quorum. If a Commissioner is absent from a hearing, he/she shall no longer participate in the proceedings unless both parties agree that he/herself may familiarize himself with the proceedings held during his/her absence and continue to participate. If the disqualification of a Commissioner reduces the Commission to less than a quorum, and the parties do not agree that the absent Commissioner may continue as provided above, the hearing shall be terminated, and a new hearing commenced as soon as a quorum of the Commission can be assembled or the appeal may be referred to a hearing officer. (revised 1/20/00)
The appointing authority shall have the burden of proving the charges by a preponderance of the evidence. A preponderance of the evidence means as follows:
By a preponderance of the evidence is meant such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth. In the event that the evidence is evenly balanced so that it is not possible to say that the evidence on either side of an issue preponderates, then the findings upon that issue must be against the party who had the burden of proving it.
In determining whether an issue has been proved by a preponderance of the evidence, all of the evidence bearing upon that issue shall be considered regardless of who produced it.
The appointing authority shall open the case and present his/her evidence. The employee shall then present his/her defense. Thereafter, each side may present rebuttal evidence. Each side may present an opening argument. The employer may present a closing argument and the employee may make a responsive closing argument. The employer may then make a rebuttal closing argument.
All rulings on motion, objections to evidence and rulings on interlocutory questions, shall be made by the Chairperson, subject to objection by any member of the Commission. If objections are raised, the questions shall be discussed by the Commission and the ruling of the Chairperson voted on by the Commission. The vote shall either uphold or overrule the Chairperson.
The Chairperson shall have authority to maintain order during the proceedings of the Commission, and for that purpose to order persons to conform to rules of the Commission and to order persons to leave who in the judgment of the Chairperson are disrupting the hearing.
- Evidence; Examination of Witness
The hearing need not be conducted according to technical rules relating to evidence and witnesses. The rules of evidence and the manner of producing evidence shall be those rules set forth in 513 of the Government Code for the conduct of hearings under the Administrative Procedure Act.
The appointing authority and the employee may be represented by counsel, who need not be an attorney at law.
The proceedings of the Commission need not be reported by a court reporter. A tape recording machine may be used. Either party, to an appeal hearing, may have a court reporter present to report the proceedings. The cost of the reporter and responsibility for securing a reporter shall be the responsibility of the party desiring the reporter unless the parties mutually agree otherwise. When the parties agree that the reporter is making the official record, the proceedings need not be tape recorded.
At the conclusion of the introduction of evidence and argument of counsel, the hearing shall be submitted for decision. The Commission shall retire to deliberate in private without the presence of any persons except the Commission. However, outside counsel and the Commission Secretary may be consulted as required. (revised 1/20/00)
In determining whether the charges have been proved, the Commission must find each separate charge or specification to be sustained by the preponderance of the evidence. Any charge or specification not so sustained shall be rejected by the Commission.
In determining whether the action of the appointing authority should be sustained, modified, or revoked, the Commission shall consider only those charges and specifications which it finds proved as above. A majority vote of the Commissioners present is required to make a finding or decision. After reaching a decision, the Commission shall reduce its findings or decision to writing with the assistance of its counsel. The Commission shall thereafter, reconvene in open session and announce its decision. At that time, the Commission shall also notify the parties of the time limitations set forth in Rule 15 governing judicial review of the decision. (revised 1/20/00, 10/21/10)
The findings and decision of the Commission shall be certified to the appointing authority and enforced by him/her.
All decisions by the Commission shall be final and reviewable immediately upon adoption or rendering thereof.
- Hearings Before a Hearing Officer
- Pre-trial Procedure
If the appeal hearing is referred to a hearing officer, the Commission shall continue the matter on the calendar of the Commission from time to time until a date for a hearing before a hearing officer can be set. The Secretary of the Commission shall arrange for a hearing at the earliest date, consulting with the parties, and the office of the hearing officer. As soon as a date for a hearing has been secured by the Secretary, he/she shall notify the Commission. The Commission at its earliest opportunity shall, in open session with all parties present, refer the hearing to the hearing officer at the time and date arranged.
The parties may agree by written stipulation to waive any of the foregoing formalities.
If the parties can stipulate to the selection of a hearing officer, then that individual shall serve as the hearing officer. If a stipulation cannot be reached, then the Commission shall designate a hearing officer.
- Hearing Procedure
The hearing shall be conducted in the manner of hearings conducted under the Administrative Procedure Act.
The hearing officer shall have the right to rule on all interlocutory questions of law arising during the hearing, and may continue the hearing from time-to-time until the hearing is completed.
- Pre-trial Procedure
- Action by Commission After Decision by Hearing Officer
The Commission shall meet in open session to receive or act on the proposed decision of the hearing officer. The Commission may proceed as follows:
If a contended case is heard by a hearing officer, he/she shall prepare a proposed decision in such form that it may be adopted as the decision in the case. A copy of the proposed decision shall be filed with the Commission and a copy of the proposed decision shall be served by the Commission on each party in the case and his/her representative. The decision shall be accompanied by findings of facts.
The Commission may adopt the proposed decision in its entirety, reject the proposed decision, or may reduce the proposed penalty and adopt the balance of the proposed decision. The decision of the Commission shall be final.
- Time Requirements
Upon good cause shown, the Commission may extend, shorten or forgive a violation of any time limit set forth in this Rule 10.5. In making a determination of good cause, the Commission shall consider whether the employee is represented by an attorney or whether the employee's representative is experienced with proceedings before the Commission. The Secretary of the Commission shall give a copy of this Rule 10.5 to the employee's representative at the time the appeal appears on the calendar for setting.
- Except as is expressly provided in this Rule 10.5, the Commission shall not be required to conduct a full blown evidentiary hearing on any alleged violation of the Commission's Rules.