HRAR-3.15 - Civil Service Board

Meetings and Quorum

 The Civil Service Board (Board) consists of three commissioners under City Charter Chapter 4. The Board selects one of its members as presiding officer. The Board shall meet at such times and places as are specified, but no less than quarterly, and shall report annually to City Council on its activities for the prior year.

Two members of the Board shall constitute a quorum and the votes of any two members concurring shall be sufficient to make a decision.

The City shall provide to the Board sufficient staff and legal assistance, meeting space, supplies and equipment to conduct its business, in accordance with City budget procedures.

Supplemental Rules of Practice and Procedure

Supplemental rules of practice and procedure with definitions are attached hereto as Appendix B.

Parties shall refer to and comply with the supplemental rules as part of the appeal process.

Administrative Duties

1. It shall be the duty of the Board to hold such hearings as it finds necessary in order to perform the duties and responsibilities vested in it by City Charter.
2. Where the Director of Human Resources denies an appeal because of lack of jurisdiction, the Board may hold such meetings as are necessary to determine whether the Board has jurisdiction over the appeal prior to scheduling a formal or expedited hearing. If the Board denies the appeal on this basis it shall notify all affected parties in writing of its decision and that the decision is subject to court review as set forth below in this Administrative Rule.
3. Where the Board, on its own motion or the motion of one of the parties to the appeal, determines the appeal involves legal issues that should be resolved prior to a formal or expedited hearing, the Board may schedule a hearing for the sole purpose of resolving those legal issues. Hearings held for this purpose are non-adversarial and the provisions below concerning burden of proof and burden of going forward shall not apply.
4. On at least an annual basis the Board shall review any administrative rules and policies being considered concerning the duties of the Board and shall provide input to the City Council and to the Director of Human Resources.
5. The Board may adopt rules of practice and procedure, subject to the approval of the Director of Human Resources.

Filing of an Appeal

Appeals must be timely filed in accordance with this Administrative Rule. Appeals shall not be considered filed until received by the Board Administrator.

Limitations Period

The time limits set forth in this rule are jurisdictional in nature. Failure to comply with the time limits deprives the Board of jurisdiction. If the Board lacks jurisdiction to hear an appeal, the appeal will be dismissed. For example, for appeals challenging disciplinary suspensions, demotions or discharges, the employee must file a written appeal with the Board within twenty-one (21) calendar days of the effective date of the disciplinary action. For classification appeals, a precondition of the Board’s jurisdiction requires the affected employee to file a request for reconsideration of the classification action with the Director of Human Resources within fourteen (14) calendar days of the effective date of the classification action. Similarly, for examination appeals, the candidate must file a written appeal of the examination results with the Director of Human Resources within fourteen (14) calendar days after BHR mails the examination results to the candidate. None of the time limits for Civil Service Board appeals is subject to a discovery rule, i.e. the limitation periods are not tolled until the employee knew or reasonably should have known of a basis to appeal.

Appeals from Suspensions, Demotions and Discharges

Subject to these rules on Hearings and Appeals, the Board shall review actions of disciplinary suspension, demotion or discharge of a permanent, non-probationary employee, where the employee alleges that the disciplinary suspension, demotion or discharge was for a political or religious reason, was not for cause or was not made in good faith for the purpose of improving the public service. Unless otherwise provided by a collective bargaining agreement, any permanent, non-probationary employee in the classified service who is subject to a disciplinary suspension, demotion or discharge shall have the right to appeal the action to the Board.

1. The employee subject to such disciplinary suspension, demotion or discharge must file a written appeal with the Board within twenty-one (21) calendar days from the effective date of the disciplinary suspension, demotion or discharge. The appeal must contain a detailed statement specifying:
   • The action being appealed.
   • The reasons why the employee believes the action was for a religious or political reason, was not in good faith for the purpose of improving the public service or was not taken for cause.
2. The Board Administrator shall serve the appointing authority concerned and the Director of Human Resources with a copy of the written appeal.
3. When a collective bargaining agreement provides a right of appeal to the Board concerning a suspension, demotion or discharge and as an alternative the right to grieve such suspension, demotion or discharge, if the employee or the employee’s union files a grievance, there shall be no appeal to the Board.
4. Except as provided in paragraph 3 above, when an employee or the employee’s union has the right to grieve a suspension, demotion or discharge through a grievance procedure under a collective bargaining agreement and a grievance is filed, the grievance under the collective bargaining agreement shall be the exclusive method to challenge such suspension, demotion or discharge for purposes of this rule and there shall be no appeal to the Board. If no grievance is filed under the employee’s collective bargaining agreement, the employee can pursue an appeal to the Board of a disciplinary suspension without pay, demotion or discharge in accordance with and subject to the provisions of this rule.

Appeals from Classification Actions

Subject to these rules on Hearings and Appeals, the Board shall review appeals of classification actions taken by the Director affecting an employee in the classified service, where such action was alleged to be without rational basis or contrary to law or rule promulgated by the Director for classification or taken for a political reason.

Unless otherwise provided by a collective bargaining agreement, any employee adversely affected by a change in classification or whose request for a change in classification was denied, and any appointing authority who disagrees with a classification decision by the Director, may have the final decision of the Director reviewed by the Board.

1. To obtain Board review, the employee affected, or in the event of an appeal by the employing bureau, the appointing authority involved must file a written appeal with the Board. The appeal must contain a detailed statement specifying:
   1. That the employee or appointing authority had filed with the Director a written request for reconsideration of the Director’s classification action within fourteen (14) calendar days after the effective date of the classification action;
   2. The date of the Director’s written decision denying the employee’s or appointing authority’s request for reconsideration;
   3. The reasons why the employee or appointing authority believes the action was without a rational basis, or contrary to a provision of rules promulgated by the Director for classifications, or law or was for a political reason;
   4. The corrective action being requested.
2. The written appeal to the Board must be filed within twenty-one (21) calendar days from the Director’s written decision to deny the request for reconsideration.
3. When a collective bargaining agreement provides a right of appeal to the Board concerning a classification action and as an alternative the right to grieve such classification action, if the employee or the employee’s union files a grievance, there shall be no appeal to the Board.
4. Except as provided in paragraph 3 above, when an employee or the employee’s union has the right to grieve a classification action through a grievance procedure under a collective bargaining agreement and a grievance is filed, the grievance under the collective bargaining agreement shall be the exclusive method to challenge such classification action for purposes of this rule and there shall be no appeal to the Board. If no grievance is filed under the employee’s collective bargaining agreement, the employee can pursue an appeal to the Board of a classification action in accordance with and subject to the provisions of this rule.

 Appeals from Examinations

Subject to these rules on Hearings and Appeals, the Board shall review appeals of candidates for appointment or promotion to a position in the classified service, where the candidate alleges that the Director’s decision was contrary to rules promulgated by the Director for examinations, or that the decision was contrary to law or for a political reason. The Board shall not have jurisdiction over any examination appeal where the sole basis of the appeal questions the appointing authority’s right to select a candidate for appointment or promotion.

1. If the candidate is not satisfied with the decision of the Director of Human Resources, that candidate may appeal to the Civil Service Board. The appeal must be in writing and must contain a detailed statement specifying:
   1. That the candidate had filed with the Director a written appeal of examination results within fourteen (14) calendar days after notice of the results is mailed;
   2. The date of the Director’s written decision after such appeal;
   3. The reasons why the candidate believes that the decision by the Director was contrary to rules promulgated for examinations, or that the decision was contrary to law or for a political reason;
   4. The corrective action being requested.
2. The written appeal to the Board must be filed no later than twenty-one (21) calendar days after the Director’s decision is mailed.
3. When a collective bargaining agreement provides a right of appeal to the Board concerning an examination decision and as an alternative the right to grieve such examination decision, if the employee or the employee’s union files a grievance, there shall be no appeal to the Board.
4. Except as provided in paragraph 3 above, when an employee or the employee’s union has the right to grieve an examination decision through a grievance procedure under a collective bargaining agreement and a grievance is filed, the grievance under the collective bargaining agreement shall be the exclusive method to challenge such examination decision for purposes of this rule and there shall be no appeal to the Board. If no grievance is filed under the employee’s collective bargaining agreement, the employee can pursue an appeal to the Board of an examination decision in accordance with and subject to the provisions of this rule.

 Notice of Hearings

Time and Place of Hearings. The time and place of hearing will be set by the Board or the Board’s designated Hearings Officer and notice thereof served by the Board upon the employee affected, the employee’s representative, if any, the Director of Human Resources and the Director of the Bureau involved.

Postponements. Any party who desires a postponement shall promptly, upon receipt of notice of the hearing, make written request of the Board or the Board’s designated Hearings Officer for such postponement stating the reason therefore in detail. For reasonable cause shown, the Board or Hearings Officer may grant such postponement and may, at any time, order a postponement upon its own motion. In the absence of extraordinary circumstances, the Board or Hearings Officer will not allow more than one postponement.

Type of Hearing

Upon receiving an appeal, the Board Administrator shall inform the appellant of the choice between an expedited hearing and a formal hearing. The appellant shall have fourteen (14) calendar days in which to exercise their choice by communicating that choice in writing to the Board Administrator. Failure to elect the type of hearing in the allotted time will result in the scheduling of an expedited hearing.

Exhibits for Hearings and other Board Proceedings

Documents to be considered by the Board as exhibits for a hearing or other Board proceeding must be filed in the format specified in the supplemental procedural rules set forth in Appendix B.

Upon receipt of exhibits filed by either party, the Board Administrator shall distribute the exhibits to the Board and to the opposing party in advance of the scheduled hearing or proceeding.

Expedited Hearing

1. Notice of Hearing: All parties will be notified of the hearing date as soon as possible following the appellant’s notice of a request for an expedited hearing to the Board Administrator. Expedited hearings will receive priority for scheduling over formal hearings. There will be at least twenty-one (21) calendar days’ notice prior to any hearing date.
2. Expedited hearings shall be informal in nature.
3. No party may be represented by legal counsel at an expedited hearing.
4. Each party shall be allowed up to 90 minutes to present its case, including presentation of witnesses, response to the other party’s arguments and questioning the other party’s witness. The Board, at its sole discretion, may extend the time limits for either party.
5. Exhibits to be considered by the Board must be filed by the parties with the Board Administrator fourteen (14) calendar days prior to the date the Board is scheduled to hear the appeal. Exhibits not received by the Board Administrator fourteen (14) calendar days prior to the scheduled hearing date will not be considered. The Board, in its sole discretion, may waive this requirement at the hearing upon good cause being shown.
6. Expedited hearings will normally be open to the public. In disciplinary cases, the Board shall excuse all persons from the hearing room except its staff, the parties and their representatives, if a determination has been made by the employee affected to have the case heard in executive session pursuant to ORS 192.660 (2) (b) of the Public Meetings law.
7. At the conclusion of the hearing, and deliberations as necessary, the Board shall normally render a “bench” decision which will be recorded in the minutes of the Board meeting. The Board shall either grant or deny the appeal. See section below on post-hearing remedies.

Formal Hearing

1. Formal hearings shall be scheduled for initial calendaring as a second priority after expedited hearings. There will be at least sixty (60) calendar days’ notice prior to any hearing date.
2. Either party may be represented at the hearing by legal counsel.
3. Exhibits to be considered by the Board must be filed by the parties with the Board Administrator thirty (30) calendar days prior to the date the Board is choice to the Board Administrator. Failure to elect the type of hearing in the allotted time will result in the scheduling of an expedited hearing for all appeals except those related to discipline.
4. When a disciplinary matter is appealed to the Board, the matter will go to formal hearing unless the parties mutually agree to an expedited hearing. Documents not received by the Board Administrator thirty (30) calendar days prior to the scheduled hearing date will not be considered. The Board, in its sole discretion, may waive this requirement at the hearing upon good cause being shown.
5. Each party must provide the Board and the other parties with a proposed list of witnesses including the general topic of the issues that will be addressed fourteen (14) calendar days prior to the hearing date.
6. General Hearings Procedure:
   1. The Board will open the hearing with a brief introduction of the parties and issues.
   2. In disciplinary cases, the Board shall excuse all persons from the hearing room except its staff, the parties and their representatives, if a determination has been made by the employee affected to have the case heard in executive session pursuant to ORS 192.660(2)(b) of the Public Meetings Law.
   3. The parties or their representatives may make opening statements.
   4. The parties or their representatives may present evidence in support of their respective positions. Opposing parties will be allowed to crossexamine witnesses.
   5. Parties may make closing statements. However, in disciplinary cases, a party may request to file a post-hearing memorandum and such request shall not be arbitrarily denied. The Board may set limits on the size, length and scope of post-hearing memoranda to be filed, as the Board deems reasonable and appropriate for the case.
7. Oaths and Subpoenas. The Board may compel the attendance of witnesses and the production of documents through issuance of subpoenas, either upon its own motion or upon application of a party in writing and good cause being shown. Documents that may be obtained by filing a Public Records Request shall not be subject to subpoena, unless good cause is shown. The Board may issue a protective order or take other measures to protect the confidentiality of documents and may require the return of all documents subject to a protective order at the conclusion of the matter. Applications for subpoenas must comply with the supplemental procedural rules set forth in Appendix B. The Board’s designated presiding officer shall administer the oaths to every witness.
   Download PDF fileAppendix B - HRAR 3.15 Civil Service Board 227.12 KB
8.  Conference During and Prior to Hearings. During or prior to any proceeding, the Board may, at its discretion, call the parties together for a conference or may recess the hearing for such conferences to resolve undisputed or procedural matters. The results of such conference shall be summarized on the record.
9. Stipulations of Agreed Upon Facts and Issues. Unless excused by the Board, the parties are required to confer before the hearing for the purpose of stipulating to agreed-upon facts and issues involved in the controversy. Such stipulations shall be binding upon the parties and may be used as evidence in the case.
10. Proposed Findings of Fact and Conclusions of Law. Following the conclusion of the hearing the Board may at its discretion require the prevailing party to serve proposed findings of fact and conclusions of law upon the Board and to all other parties within fourteen (14) calendar days. The opposing party will have fourteen (14) calendar days after service to respond in writing to the proposed findings of fact and conclusions of law to the Board and the prevailing party. See section below on post hearing remedies.
11. Continuances. On the motion of a party, or on the Board’s own motion, if it appears that further testimony or argument should be received, the Board may in its discretion continue the hearing upon a showing of good cause. The date of such continued hearing may be fixed at the time of hearing or by later written notice to the parties.

 Use of Hearings Officers

The Board shall be empowered to refer an appeal to a Hearings Officer who will conduct the appeal process in accordance with this Rule. The Director of Human Resources shall upon request provide the Board with a list of Hearings Officers who shall be qualified individuals known to be committed to the principles of a merit-based system of employment. For inclusion on the list, persons must be specialists in the field of employee relations, or members of the Oregon State Bar Association or the American Arbitration Association.

Any amount or method of compensation of the Hearings Officer shall be prescribed by the Director, subject to Council approval and funding.

Except where expressly otherwise provided in these rules, all provisions of these rules pertaining to the duties and authority of the Board in the conduct of appeals hearings shall be fully applicable to the Hearings Officer. This includes, but is not limited to, rulings on pre-hearing motions and motions filed prior to the conclusion of a hearing.

Burden of Proof in Appeal Hearings

In a hearing on an appeal from a suspension, demotion or discharge, the appointing authority or designee shall have the burden of proof and the burden of going forward with the evidence. In appeals concerning classification actions and exams, the party filing the appeal shall have the burden of proof and the burden of going forward with the evidence. The party who has the burden of proof shall present its case first.

 Standard of CSB Review in Expedited and Formal Hearings

Disciplinary Cases. In such hearings, the Board will apply the “reasonable employer” standard to determine first whether the employee’s conduct warranted discipline, and second, if so, whether the discipline imposed for the offense was objectively reasonable.

Classification Action Appeals. In appeals from classification decisions, the Board will review the Director’s decision to determine whether the decision, as alleged by the appellant was without a rational basis or contrary to law or rules promulgated for classifications or taken for political reason.

Examination Appeals. In appeals concerning the examination process, the Board will review the Director’s decision to determine whether the decision, as alleged by the appellant, was contrary to rules promulgated for examinations, or was contrary to law or for a political reason.

The Standards of Review are set out in Appendix A to these rules.

 Conduct of Witnesses, Parties and the Public During Hearings

All parties, their representatives, witnesses and spectators shall conduct themselves in a respectful manner. Demonstrations of any kind will not be permitted. Failure to comply with this rule or with the Board’s effort to maintain order and proper decorum are grounds for removal from the hearing. Refusal of a witness to answer any question ruled to be proper shall, in the discretion of the Board, be grounds for striking all testimony previously given by the witness.

Post Hearing Procedures

Board Decisions. Decisions of the Board shall in all cases be based solely on the record made at the hearing and on applicable law and other legal authorities, relevant to the dispute. When the Board has not appointed a Hearings Officer, Board decisions, except in expedited cases, shall be issued as follows:

• At the conclusion of hearings in appeals from suspensions, demotions and discharges, the Board shall state the time in which a written decision will be issued. The written decision shall include Findings of Fact, Conclusions of Law and the Board’s Final Order. The Board can issue a preliminary decision by voice vote.
• Decisions on appeals concerning examination and classification appeals may be made by a voice vote of the Board at the conclusion of the hearing, provided that in the event the Board sustains the appeal in whole or in part and provides a specified remedy, the Board shall issue a written decision within thirty (30) days following the hearing.
• In all appeals of classification decisions by the Director of Human Resources, the Board shall issue a written decision within thirty (30) days following the hearing.

Recommended Order of the Hearings Officer. In matters referred to a Hearings Officer, a Recommended Order shall be served on the parties and filed with the Board within the time periods specified in the section above on post hearing procedures. Where applicable, the Recommended Order shall include Rulings on Motions and Evidentiary Matters, Findings of Fact and Conclusions of Law.

Board Decisions on Recommended Orders. Board review of Recommended Orders is limited to the hearing record and applicable law. The Board may adopt a Recommended Order by voice vote. If the Board rejects or requires modification of the Recommended Order, the Board shall base its final decision upon a review of the hearing record and shall issue a written decision within thirty (30) days of its determination to reject or modify the hearings officer’s received order.

Effect of Board Decisions. Board decisions are final and binding on the parties, subject to the appeal process outlined below.

Appeal of Board Decisions. The final decision of the Board shall be subject to review by the circuit court in the manner provided by statute for review of Quasi judicial decisions of lower tribunals.

 Post Hearing Remedies

Classification Action Appeals. If in an appeal from a classification decision by the Director, the Board concludes that the allegations in the appeal are correct, the Board shall set aside the classification decision and remand the decision back to the Director of Human Resources for further review. The Board’s order of remand shall specify and explain the reasons for the Board’s action.

Examination Appeals. If in an appeal concerning the examination process, the Board finds the allegations in the appeal are correct, the Board shall order such action, as it deems necessary to fulfill the purposes and principles of the Administrative Rules on examinations and of Chapter 4 of the City Charter.

Appeals from Suspensions, Demotions and Discharges. If the Board finds that the discipline was warranted, the Board shall confirm the action taken. If the Board finds that some discipline was warranted, but that the discipline imposed was too severe, the Board may reduce or otherwise modify the discipline to a level it deems appropriate for the offense and reinstate the employee with or without back pay upon such terms and conditions that the Board may establish. If the Board finds that no discipline was warranted, the Board shall reinstate the employee with back pay and with those fringe benefits which were lost as a result of the discipline. Deductions for unemployment compensation and other interim income received shall be ordered as determined by the Board.

Record of Proceedings

The record of each appeals hearings shall include but not be limited to:

1. A statement identifying the dispute;
2. All written materials offered to the Board, unless withdrawn by the offering party with the approval of the Board or Hearings Officer;
3. The Hearings Officer’s Recommended Order if applicable;
4. The Board’s final written decision or when allowed by the rules, oral statements of the Board’s decision;
5. The recording of the hearing, which shall be either a verbatim written record or mechanical recording.