CIVIL SERVICE
COMMISSION
GOVERNMENT OF
RULES OF PROCEDURE FOR ADVERSE ACTION APPEALS
RULE
1 JURISDICTION
The Civil Service Commission
(hereafter "the CSC") is empowered to create these Rules pursuant to
4 G.C.A. §4401.
These
rules are effective March 05, 2002
RULE
2 PURPOSE
The purpose of these Rules is to
create a fair process with which to adjudicate Adverse Action Appeals
(hereafter referred to as an "action").
RULE 2.1 UNREPRESENTED PARTY
The CSC shall adjust the application
of these Rules for any party who is not represented by a lawyer or a lay
representative when it is clear there is a genuine misunderstanding of a
rule(s) which, if applied, would operate unfairly.
RULE
3 CITATION
These Rules may be cited as CSC Rule,
and then the number; and may also be referred to as the Rules of the Civil
Service Commission.
RULE 4 CITATION TO LAWS AS RULES
Many of these Rules paraphrase
existing laws. For example, Rule 5.2
states that an appeal from an adverse action must
be taken within twenty (20) days from the
effective date of
the action.
4 G.C.A. §4406 establishes the twenty (20) day period by law.
The reason certain laws are paraphrased as Rules is that Employees against whom adverse actions are taken are generally given a copy of these Rules by Management or have these Rules available. The CSC believes it important to inform Employees of laws critical to their appeal by including some of these laws in these Rules. When a Rule is related to a law, a citation to the law shall be included.
RULE
5 RIGHT TO APPEAL
A
person may appeal an adverse action to the CSC, if the person meets all of the
following criteria:
A. Is a permanent, classified Employee, and
B.
Has successfully
completed his (hereafter his also means
her) probationary period, and
C. Is subjected to an Adverse Action, and
D. Is
entitled under his department's or agency's Personnel Rules to appeal to the
CSC.
See: 4 G.C.A. §4403(b)
RULE 5.1 ADVERSE ACTION
An adverse action is a termination
from employment, or a suspension from employment or a demotion in employment.
See:
4 G.C.A. §4403(b)
RULE 5.2 TIME
FOR FILING APPEAL
An appeal from an adverse action must
be filed in writing with the CSC, during normal working hours, within twenty
(20) days of the employee's receipt of the Final Notice of Adverse Action from
Management.
If the Employee willfully evades
service of the Final Notice of Adverse Action, the twenty (20) day period
referred to above begins to run on the day the Employee first willfully evades
service.
The term "service" is defined in Rule 6.
"Filed" means given to the CSC and received by the CSC. A document may be filed by facsimile,
registered mail or by personal delivery.
See: 4 G.C.A.
§4406.
5.2.1 FILING PAST THE TWENTY (20) DAY PERIOD
The CSC may excuse the
filing of a Notice of Appeal beyond the twenty (20) day period if the Employee
proves a compelling reason for his failure to timely file.
5.2.2 COMPUTATION OF TIME
Whenever these Rules or
orders of the CSC provide for a time period of ten (10) or less days, weekends
and government of
The first day of a time
period commences with the day after a party receives a document or order which
contains a time period.
RULE 5.3 CONTENTS OF APPEAL
The Notice of Appeal shall be in the following format:
CIVIL SERVICE COMMISSION
GOVERNMENT
OF
(Name of Employee) ADVERSE ACTION #______________
EMPLOYEE
vs.
(Name of Department/Agency) NOTICE OF
APPEAL
MANAGEMENT
RULE 5.3.1 CONTENTS
The Notice of Appeal shall
be a brief, plain statement, either typed or hand written, stating why the
Employee believes the adverse action should not have been taken against him.
The parties to an adverse
action appeal are to be identified as the EMPLOYEE
and as MANAGEMENT. The Employee and Management to an action are
collectively referred to as the "parties".
RULE 5.3.2 AMENDMENT OF NOTICE OF APPEAL
A Notice of Appeal may be amended by the Employee without permission of the CSC, if it is amended within fifteen (15) days after the date it was originally filed. An Amendment after fifteen (15) days shall be made by motion.
RULE 5.4 RIGHTS OF EMPLOYEE WHO FILES AN APPEAL
The Employee shall:
b. have the right to be represented by an attorney, another person who is not an attorney, or represent himself; and
c. not suffer from Management any restraint, coercion, discrimination or reprisal for filing an appeal of an adverse action, either during the appeal process or after it has been adjudicated.
RULE
6 SERVICE OF
DOCUMENTS
All documents filed with the CSC, except for the Final Notice of Adverse Action and the Notice of Appeal, shall be served by the parties on each other or to the other's representative or lawyer. Service means giving a copy of a document to a party, a party's representative or lawyer.
RULE 6.1 HOW SERVICE IS PERFORMED
Service may be made by the parties and Commission as
follows:
a. Personal delivery, with a copy of the document acknowledged in writing to have been received; or
b. By facsimile to a representative's or attorney's place of business with a confirmed receipt; or
c. Regular mail with supporting affidavit as to the date of mailing; or certified mail with a signed return receipt; or
d. By any method of service established by
the Superior Court of Guam's Rules of Civil Procedure.
RULE
7 CONFERENCES
RULE 7.1 STATUS CALL
CONFERENCE
Upon receipt of a Notice of Appeal,
the CSC shall immediately set the matter for a Status Call Conference. The Status Call Conference shall be conducted
by the Administrative Counsel or in his absence, the Personnel Management
Administrator.
At the Status Call conference, the
parties or their representatives shall be prepared to discuss:
a. The
legal issues of the action;
b. Pre-hearing
motions;
c. Witnesses
and documentary evidence;
d. The
possibility of settlement; and
e. The
date of the hearing on the merits.
RULE 7.2 PRE-HEARING CONFERENCE
Two (2) weeks before the hearing on the merits, the parties shall meet with the Administrative Counsel at a pre-hearing conference to finalize witness lists and exhibits, and to discuss stipulations or other matters that may expedite the hearing on the merits.
RULE
8 DISCOVERY
The CSC's Administrative Counsel shall control the nature and scope of discovery between the parties, including, but not limited to, the following:
A. Issuing
orders compelling discovery;
B. Issuing
orders limiting the scope and nature of discovery;
C. Issuing
orders establishing dates for completion of discovery; and
D. Issuing
protective orders regarding discovery.
RULE 8.1
Any order regarding discovery that is issued by the Administrative Counsel is subject to review by the CSC, if a party requests such a review by filing an appropriate motion with the CSC within forty-eight (48) hours (holidays and weekends excluded) of receipt of the order.
See: 4 G.C.A.
§4406
RULE
9 PRE-HEARING MOTIONS
The moving party bears the burden of
proof on motions by a preponderance of the evidence. The parties shall file any
motion regarding procedural issues or questions of law prior to the hearing on
the merits.
All pre-hearing motions must be in
writing and must be filed and then served on all other parties.
RULE 9.1 ARGUMENTS ON
MOTIONS
The CSC may or may not hear oral
arguments on written motions. The CSC
may rule on a motion without hearing arguments.
RULE 9.1.1 ISSUES
RAISED BY THE
COMMISSION
Any Commissioner may, at
any time, raise issues not raised by motion of the parties. Upon a majority vote of the CSC, such issues
must be addressed by the parties and decided by the CSC.
RULE 9.2 MOTION
FILING SCHEDULE
Unless otherwise predetermined by an
order, the moving party must file and serve a motion thirty (30) days before
the hearing on the merits.
A motion may be supported by
affidavits, but no live testimony shall be taken at a motion hearing unless a
written request from a Party is approved by the Administrative Counsel within
five (5) days after the opposition brief is filed.
Unless otherwise predetermined by a
discovery order, the opposition brief shall be filed ten (10) days before the
hearing on the motion.
No reply briefs shall be filed unless with the written approval of the Administrative Counsel.
RULE 9.3 FAILURE TO
TIMELY FILE
Motion documents that are not filed on time may be disregarded by the CSC or subject the transgressing party or his representative to sanctions.
RULE 9.4 MOTIONS TO
POSTPONE HEARINGS
A motion to continue a date of
hearing shall set forth the factual bases for the motion.
Continuances based on illness, emergencies, or stipulation of the parties, may be granted without hearing by the Administrative Counsel or in his absence by the Executive Director, if said decision may be made seven (7) days before the hearing sought to be postponed.
RULE 9.4.1 CONTINUANCES OTHER
THAN IN RULE 9.4
The Commission's Administrative Counsel is empowered to grant continuances of the date of hearing, so long as the continuance is applied for more than seven (7) days before the date sought to be continued.
RULE 9.4.2 STAYS
The Commission's
Administrative Counsel is empowered to grant "stays" of actions when
a motion to stay proceedings is brought by an Employee on the basis that the
Employee has been or may be charged with a criminal offense which arises from
the same factual transaction which is the basis of the adverse action.
RULE 9.5 MOTIONS TO
DISMISS
Motions to dismiss an adverse action
appeal may be made on the bases of lack of jurisdiction, untimely filing of the
appeal, procedural defects in the proceeding or other significant reasons. The legal and factual bases of such motions
must be sufficiently set forth in the motion and supporting affidavits.
A motion to dismiss may also be made
upon stipulation of the parties. A
stipulated motion to dismiss, however, must be approved by the CSC.
An Employee may dismiss his appeal
with prejudice by filing a written motion to dismiss which must be signed by
the Employee and his representative or attorney.
The Parties may settle an action, but any settlement must be approved by the CSC before the action is dismissed with prejudice.
RULE 9.6 MOTION
TO ALLOW HEARING
IN THE
ABSENCE OF
THE EMPLOYEE
The CSC may dismiss an appeal if the
Employee is not present for the hearing on the merits, unless the Employee has
a reasonable excuse.
A motion to permit an Employee to be absent from the hearing on the merits shall set forth the factual basis for the motion. The CSC may require affidavits in support of the motion.
RULE 10 SUBMISSION OF
DOCUMENTS FOR INTRODUCTION
INTO EVIDENCE
RULE 10.1 TIME
FOR SUBMISSION OF
DOCUMENTS
No later than seven (7) days before a
hearing on the merits or a motion hearing, each party shall submit to the CSC
all documents it wishes the CSC to consider.
RULE 10.1.1
Management shall submit to the CSC the Notice of Proposed Adverse Action and the Notice of Final Adverse Action.
RULE 10.1.2
Employee shall submit to the CSC the Notice of Appeal
of Adverse Action.
RULE 10.2 DOCUMENTS TO BE BOUND
The documents shall be bound into a binder. Each document shall be indexed and tabbed. Press-guard or other inexpensive binders are sufficient.
RULE 10.2.1
Management shall identify its documents using consecutive letters of the alphabet.
RULE 10.2.2
Employee shall identify his documents using
consecutive numbers.
RULE 10.2.3
Each party shall submit eleven (11) copies of their
binders to the CSC.
RULE
11 HEARING ON
THE MERITS --- BURDEN OF
PROOF
The burden of proof on the merits is
on Management to prove its allegations by a preponderance of the evidence. If, however, Management's allegations would
constitute criminal charges, then Management bears the burden of proof to prove
the allegations by substantial evidence.
See: 4 G.C.A. §§4407(a) and 4407(c)
RULE 11.1 PLACE
AND TIME OF
HEARING
The Commission shall set the place, date and time of hearing as expeditiously as possible.
RULE 11.2 CONDUCT OF HEARING
The hearing is open to the public
RULE 11.2.1
The hearing will be conducted so as to bring out pertinent facts, including the production of certain records.
RULE 11.2.2 ADMISSIBILITY OF
EVIDENCE
Decisions on the admissibility of testimony or other evidence are made by the presiding officer of the CSC after consulting with the Administrative Counsel. When a Commissioner objects to a decision of the presiding officer, the objection shall be sustained by not less than four (4) concurring votes.
RULE 11.2.3 OATH
Testimony is under oath or affirmation.
RULE 11.2.4 RIGHT TO
CALL WITNESSES
Each party shall have the
right to call, examine, or cross-examine witnesses, and introduce exhibits.
The CSC may subpoena to
testify any person upon a majority vote.
Any Commissioner may direct relevant questions to a witness after examination of the witness has been completed by both parties; except that questions may be asked during examination by a Party to clarify a response by a witness.
RULE 11.2.5 RULES
OF EVIDENCE
The Rules of Evidence,
Title 6 G.C.A., shall not apply. The
only grounds for excluding any proffered evidence are that the evidence is
irrelevant or unduly repetitious.
RULE 11.2.6 ORDER
OF PRESENTATION
The order of presentation at the hearing shall be as
follows:
a. Opening statement of Management;
b. Opening statement of Employee;
c. Presentation by Management of evidence
in support of the charges;
d. Presentation by the Employee of such
evidence in defense or rebuttal;
e. Closing statement of Management;
f. Closing statement of Employee.
RULE 11.3 WITNESSES
Both parties are entitled to produce
witnesses.
The department or agency head or his
designee shall be in attendance without subpoena.
Except as otherwise provided in Rule 9.6, the Employee shall be in attendance without subpoena.
RULE 11.3.1
The CSC may call
additional witnesses, as it may deem necessary, and require the production of
documents.
RULE 11.3.2 SUBPOENAS
The Chairperson of the
Civil Service Commission or the Executive Director, upon their own initiative,
or upon the request of any member of the CSC Board, or upon the request of any
party before the CSC, may summons in writing any person to attend a meeting of
the CSC as a witness and, in a proper case, to bring with him any book, record,
computer print-out, paper or thing which may be deemed material evidence in the
case.
Subpoenas shall be served by the party who requested the issuance of the subpoena as per Rule 6 and Rule 6.1.
RULE 11.3.2.1 SUBPOENA FEES
The fees for such
attendance shall be the same as the fees of the witnesses before the Superior
Court, except that if the witness is a government employee no witness fee shall
be given. Upon motion, the fee may be
waived by the CSC.
The subpoena shall issue
in the name of the Civil Service Commission, and shall be directed to the
person and served in the same manner as subpoenas to appear and testify before
the Superior Court of Guam.
RULE
11.3.2.2 ENFORCEMENT OF
SUBPOENA
If any person summoned to
testify shall refuse or neglect to obey said subpoena, upon petition, the
Superior Court of Guam may compel the attendance of such person before the CSC,
or punish said person for contempt in the same manner provided by law for
securing the attendance of witnesses or their punishment for neglect or refusal
to attend in the Superior Court.
See: 4 G.C.A. §4404.
RULE 11.3.3 DUTY
STATUS
An Employee is considered
to be on duty status during the time he is made available as a witness. Such employee is entitled to compensatory
time-off if he serves during a time he is not normally scheduled to work. The CSC shall furnish the head of the
department or agency in which the witness is employed, a certification showing
the time devoted to the hearing.
"Employee" in this section does not include the parties to the
appeal or their representatives.
RULE 11.3.4
The CSC shall ensure that
all witnesses are treated with courtesy and respect while giving testimony at
the hearing.
The Government of Guam
shall assure witnesses freedom from restraint, interference, coercion,
discrimination, or reprisal in presenting testimony.
See: 9 G.C.A.
§5545.
RULE 11.4 RECORD OF
HEARING
All hearings shall be audio tape recorded by the CSC. The CSC's recordings and the exhibits admitted during the hearing, together with all pleading and documents filed by the parties, shall constitute the official record of a hearing.
RULE 11.4.1
Filming, video taping or
audio recording of a hearing or other proceeding before the CSC by any person
is permitted by the CSC only upon written motion or request.
RULE 11.4.2
Copies of the audio tape
recording of hearings will be made available to any person at cost.
RULE 11.5 LIMITATION IN THE SCOPE OF HEARINGS ON
THE MERITS
The scope of the hearing on the merits shall be
limited to:
a. the issue in dispute; and
b. a review of compliance with procedural
requirements for effecting an adverse action;
RULE 11.6 DELIBERATIONS
The deliberation of the CSC regarding the merits of actions and motions shall be made outside the presence of the public, the parties and the representatives of the parties unless otherwise decided by a majority vote of the Commission.
RULE 11.6.1
In addition to the Commissioners, the Executive Director, Personnel Management Administrator, Administrative Counsel, Case Manager and Board Secretary, may be present during deliberations, as the CSC may see fit.
RULE 11.6.2
The Commissioners shall
have available to them during their deliberation all items received into
evidence in the action.
RULE 11.6.3
An audio tape recording
of the deliberations shall be made and maintained by the CSC. No minutes of the deliberation shall be made.
RULE 11.6.4
For good cause shown, a court of competent jurisdiction may require the CSC to produce the audio tape recording of its deliberations, otherwise the audio tape recording shall remain unavailable to the public.
RULE 11.6.5
After the CSC completes
its deliberation, it shall convene in public whereupon each Commissioner shall
state his conclusions regarding the merits and shall cast his vote.
RULE 11.7 DECISION
The CSC shall decide the appeal on the basis of the
evidence presented.
See: 4 G.C.A.
§§4403(d) and 4406
RULE 11.7.1
Except as provided in
Rule 11.7.3 below, if Management proves the charges against the Employee, the
CSC shall sustain the adverse action.
RULE 11.7.2
If Management fails to
prove the charges, the CSC shall revoke the adverse action.
RULE 11.7.3 MODIFICATION OF
ADVERSE ACTION
If Management proves the
charges, but the CSC finds, that because of the Employee's past record or the
gravity of the offense, or the facts and circumstances of the case, that the
adverse action should be modified, it may modify the adverse action
accordingly. The reasons for such
modification shall be stated in the decision of the CSC. Any compensation or benefits due as a result
of the modification shall be restored to the Employee. The CSC may not modify an adverse action to
the Employee's detriment.
In the event the CSC
modifies the adverse action taken by Management, the CSC shall make a separate
determination as to whether the Employee has prevailed for purposes of awarding
attorney fees to the Employee.
See: 4 G.C.A.
§4406.
RULE 11.7.4 PROCEDURAL
DEFECT
If the CSC finds that the
adverse action was procedurally defective because it violated personnel rules
or law, it may void or revoke the adverse action as it considers fair and
equitable under the facts and circumstances of the action.
See: 4 G.C.A.
§§4403(d) and 4406
RULE 11.7.5 JUDGMENT
A judgment is the final
administrative adjudication of the Commission on an action. A judgment shall be in writing and the
caption shall state it is a “judgment”.
The vote taken by the
Commission to decide an adverse action does not constitute a judgment.
An Order of the Commission
is not a judgment.
A judgment is entered,
that is, it becomes final and effective, on the date a majority of the
Commissioners sign the judgment at a Commission meeting attended by a
sufficient number of Commissioners to constitute a quorum. Notice that a proposed judgment is before the
Commission for signing shall be served on the parties to the action and shall
be publicly advertised as required by the Open Government Law of Guam.
A quorum of the
Commission shall be four (4) members.
The judgment shall recite
the numerical vote of the Commission in deciding an adverse action. The signing of the judgment by the
Commissioners does not reflect how they actually voted in deciding the adverse
action. The signing of the judgment
simply affirms that the judgment accurately reflects the decision that was
made.
See: 4 G.C.A. §4402
Within thirty (30) days of the entry of any
judgment that requires a department or agency to take affirmative action(s),
the director or agency head shall report to the Commission what steps he or she
has taken to implement the terms of the judgment.
RULE
11.7.7 RECONSIDERATION OR AMENDMENT (Time to seek
Judicial
Review)
A party may move the
Commission to reconsider or amend its judgment by filing a motion with the
Commission within ten (10) days of entry of the judgment.
The filing of a motion to
reconsider or amend does not effect the time limit imposed by law to file a
Petition for Judicial Review with the Superior Court of Guam.
If a motion to amend or
reconsider is not decided within thirty (30) days of the entry of a judgment,
the motion is denied.
RULE 11.7.8 JUDICIAL REVIEW
Judicial review of the judgment of the CSC may be had by filing appropriate pleadings with the Superior Court of Guam within thirty (30) days after the last day on which reconsideration can be granted.
RULE
12 TERMINATION OF
APPEAL
In
addition to adjudication on the merits, the CSC may terminate an Employee's
appeal:
A. At the Employee's request;
RULE 12.1 DEATH
OF EMPLOYEE
If an Employee dies after he has
filed an appeal of an adverse action taken against him, the appeal shall
automatically be stayed for a period up to six (6) months in order for the
Estate of the Employee to apply to the CSC to continue with the appeal.
If the Estate of the Employee does
not so apply within six (6) months, then the appeal shall be dismissed.
If the Estate of the Employee does so
apply, then the appeal shall be adjudicated.
In the event the Employee prevails,
the Estate of the Employee shall receive the compensation, but not the
benefits, the Employee would have recovered up to the date of his death.
RULE 13 REPRESENTATION OF EMPLOYEES BY
PERSONS
WHO ARE
NOT ATTORNEYS
The laws of
RULE 13.1 RULES
RELATIVE TO LAY
REPRESENTATIVES
A non-lawyer who represents an
Employee before the CSC or who represents a government agency before the CSC,
shall be called a "Lay
Representative".
A Lay Representative shall enter his appearance in an action by filing with the CSC an entry of appearance which shall include the written approval of his client and shall also contain the address and telephone number of the Lay Representative.
RULE 13.2 ENTRY
OF APPEARANCE
By entering his appearance before the
CSC, the Lay Representative becomes subject to the Orders of the CSC and to
reasonable discipline and to contempt proceedings by the CSC.
Reasonable discipline may include, but is not limited
to, the following:
a. Disqualification from appearing before
the CSC, so long as the disqualification does not prejudice the client's
interest; and
b. a monetary fine; and
c. incarceration.
By agreeing to be a Lay
Representative, the Lay Representative assumes an ethical and agency
relationship with the Employee that he represents. Lay Representatives may not be compensated
for their services.
RULE 13.3 WITHDRAWAL AS
LAY REPRESENTATIVE
No Lay Representative may withdraw
from representing an Employee except upon motion, cause shown, and an Order of
the CSC.
RULE 13.4 LAY
REPRESENTATIVE REQUIRED
Every Lay Representative shall agree in writing that he has read, and is familiar with, 4 G.C.A., Chapter 4, these Rules, and the Personnel Rules applicable to the government agency that took adverse action against the Employee.
RULE
14 HEARING COUNSEL
The CSC, by a majority vote, may
designate its Administrative Counsel to act as Hearing Counsel. When so designated, the CSC shall assign the
Hearing Counsel to conduct evidentiary hearings on specific issues. The issues shall be within the jurisdiction
of the CSC.
RULE 14.1 HEARING
PROCEDURE
Hearing Counsel shall use these Rules in conducting
hearings.
Hearing Counsel shall administer oaths to witnesses.
RULE 14.2 WRITTEN FINDINGS
Hearing Counsel shall make written
proposed findings of fact and conclusions of law which shall be served on the
Parties. The findings shall then be
submitted to the CSC who may accept, reject or modify the findings or may
conduct its own hearing on the issue(s).
RULE 14.3 PARTIES' INPUT
The Parties shall be informed of the date on which the CSC shall deliberate the adoption of the findings and may file written objections or other written comments regarding the findings for the CSC's consideration.