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Appeal Process

What kind of non-merit statutory appeals fall under CalHR's jurisdiction?

Non-merit statutory appeals 

 

CalHR only has jurisdiction over certain kinds of appeals.

 

Title 2, California Code of Regulations - Article 25. Hearings - includes sections 599.893 through 599.910.

California Code of Regulations and Memorandums of Understanding specify CalHR's jurisdiction and the appeals process.

 

Title 2, California Code of Regulations, section 599.906 (rank-and-file employees) and Title 2, California Code of Regulations, section 599.859 (excluded employees), lay out what issues fall under the  Department of Human Resources' (CalHR) Statutory Appeals Unit's (SAU) jurisdiction. Before filing an appeal with CalHR's SAU, please refer to this website's examples: Title 2, California Code of Regulations and the relevant Bargaining Unit (BU) Memorandum of Understanding (MOU) to be sure your issue falls under CalHR's SAU's jurisdiction.

 

When an employee's rights are affected by a particular MOU, actions otherwise appealable under the civil service statutes may only be arbitrated or grievabed for members of the particular BU. In those situations, affected employees are only entitled to the remedy set forth in the MOU. 

How to File an Appeal

The deadline to file an appeal is 30 days after being served notice or, if no notice was served, within 30 days after the action that generated the appeal (Title 2, California Code of Regulations, section 599.904) (Gonzales v. SPB (1977) 76 Cal.App.3d 364), unless the Government Code and case law dictates a different timeframe. For example, a request to be reinstated after an AWOL resignation must be filed within 15 days after the employee is served written notice of separation (plus 5 days for mailing).

 

When a document is sent by fax to CalHR's SAU or personally served upon CalHR's SAU, it is considered "filed" on the date it is actually received. When a document is sent to CalHR's SAU by first class, certified, express, or overnight mail, it is considered "filed" on the date postmarked on the envelope.

 

The appeal must be filed in writing (Title 2, California Code of Regulations, section 599.895). The written appeal must state the facts it is based upon and the relief being requested. It must provide sufficient detail to explain what type of statutory appeal is involved and who the parties are (Title 2, California Code of Regulations, section 599.903).

 

The appeal or inquiry must include the appellant's name, address, job classification, Social Security number, and department where employed. Include a copy of the notice or document on which the appeal is based. Do not send any other documents. These may be introduced at hearing. This information will help CalHR's SAU process the appeal in a timely manner.

 

The appeal can be filed by: fax to CalHR's  SAU at (916-322-5709), mail, or personal service. Electronic filings or communications are not accepted.

 

If the appeal is filed by mail or personal service, it must be addressed to:

 

California Department of Human Resources

Statutory Appeals Unit

1515 S Street, North Building, Suite 500

Sacramento, California 95811

 

In some cases, CalHR's SAU may extend a filing deadline up to 30 days if it finds good cause for the late filing. For more detail, refer to "Late Filings," below.

 

Appeals must be brought to hearing within three years unless both sides agree otherwise, in writing, and submit a copy of that agreement to CalHR's SAU pursuant to Title 2, California Code of Regulations, section 599.908. 

 

Failure to send non-merit statutory appeals to the Statutory Appeals Unit may not only delay processing of the appeal, but could cause the appeal to be untimely filed.

 

Late Filings

If the appeal is filed late, it will be denied as CalHR's SAU does not have jurisdiction and the employee will not be entitled to a hearing.

 

However, Title 2, California Code of Regulations, section 599.904 (Gonzales v. SPB (1977) 76 Cal.App.3d 364) allows CalHR's SAU, except as otherwise provided by statute, case law, and/or regulation, to extend the filing deadline an additional 30 days if good cause can be shown for the late filing.

 

Title 2, California Code of Regulations, section 599.904 applies to most non-merit statutory appeals, but it does not apply to petitions to set aside resignations. CalHR has the discretion to schedule a jurisdictional hearing to resolve the matter of good cause. The purpose of this hearing is limited to resolving disputed issues of fact regarding the reason the appeal was filed late. In lieu of this jurisdictional hearing, CalHR may use an internal review process to consider arguments from the parties and/or their representatives to determine good cause for the late filing.

Hearing Procedures

Appeals received by CalHR's SAU are reviewed by an Administrative Law Judge (ALJ) to verify CalHR's SAU has jurisdiction and the appeal has been filed in a timely manner. If there are unresolved issues regarding jurisdiction (including timeliness), the matter may initially be set for a jurisdictional hearing.

 

If the appeal is within CalHR's SAU's jurisdiction and is filed within the appropriate timeframe, CalHR's SAU may set the matter for a hearing before an ALJ and/or conduct an investigation.

 

If the matter is set for hearing, CalHR's SAU will send a "Notice of Time and Place of Hearing" or, in some cases, a "Notice of Pre-Hearing Conference" to the parties and their representatives. These notices give the name of the parties and their representatives, the time of the hearing or conference, and where the hearing or conference is scheduled. In some cases, the notice will provide additional information regarding the issues to be discussed. "CalHR's  Hearing Process for Statutory Appeals" is printed on the back side of the Notice of Time and Place of Hearing.

 

The parties are responsible for providing CalHR's SAU and opposing party with accurate mailing addresses and the names of the respective representatives.

 

Parties may represent themselves or retain an attorney or representative. If an attorney or representative is retained, CalHR's SAU must be notified to ensure communications are sent to that attorney or representative.

 

CalHR's SAU records the hearing by audio. The hearing is not conducted according to technical rules relating to evidence and witnesses, except as explained here or in the regulations and laws listed previously.

 

Each party has the right to introduce exhibits and rebut evidence.

 

Each party has the right to call and examine witnesses; cross-examine opposing witnesses on any matter relevant to the issues even if that matter wasn't covered in the direct examination; and impeach any witness regardless of which party first called that witness to testify. Witnesses are placed under oath and must testify truthfully. If a witness asks for witness and/or mileage fees, the party who subpoenaed the witness is required by law to pay them.

Witnesses who testify at the hearing, as well as documents to be produced at the hearing, may be obtained through the subpoena process pursuant to Government Code sections 18672 through 18674. A subpoena or subpoena duces tecum must be obtained from CalHR's SAU. The ALJ may require the materiality of the witness(es) and/or document(s) for which the subpoena and/or the subpoena duces tecum is being requested.

 

Any documents to be presented at the hearing must be copied ahead of time (in triplicate) and single-sided.  They will be presented to the opposing party and ALJ at the hearing before they can be offered as evidence. Documents to be used as evidence should not be submitted to the ALJ prior to the hearing unless specifically requested.

 

Any relevant evidence will be admitted if it is the type of evidence responsible persons are accustomed to rely upon in the conduct of serious affairs, regardless of the existence of any common law or statutory regulation that might make improper the admission of the evidence over objection in a civil action.

 

Hearsay evidence may be used to supplement or explain other evidence, but if there is a timely objection, the ALJ will not consider that evidence sufficient by itself to support a finding unless it would be admissible over objection in a civil action.

 

The ALJ has discretion to exclude evidence if its value to prove something is substantially outweighed by the probability that its admission will consume an undue amount of time.

 

Both sides must submit all evidence to the ALJ before the ALJ closes the record. After the record is closed, no documents or testimony will be accepted.

Reasonable Accommodations

If an interpreter or a telephone is needed at the hearing, CalHR's SAU must receive written notification in advance. CalHR's SAU will make arrangements pursuant to Government Code section 11435.25(a).

 

The hearing locations are accessible to persons with disabilities. However, if a reasonable accommodation is needed, CalHR's SAU should be contacted to verify the accommodation can be arranged.

 

The parties may want to consider settling the appeal. The ALJ will ask at hearing if the parties have had an opportunity to discuss settlement and may allow a limited amount of time for the parties to engage in settlement discussion. Parties are encouraged to explore settlement prior to the day of hearing.

Continuances

If either party cannot attend a hearing as scheduled, the ALJ may allow a "continuance" if the requesting party demonstrates good cause. Before requesting a continuance, contact the opposing party or representative to see if he/she will agree to reschedule and identify possible new hearing dates. Thereafter, submit a written request with this information and the reason for the request to the ALJ.

 

If the ALJ does not agree to continue the hearing, and a party does not appear, the ALJ has the discretion to treat the appeal as withdrawn. If that occurs, the appealed action will be final. 

Proposed Decision

After the hearing, the ALJ's proposed decision will be forwarded to CalHR's Director for final decision and Order. The Director has authority to adopt, modify, augment, or reject the ALJ's proposed decision except where otherwise provided by contract, regulation or law.

 

The decision becomes final 30 days after CalHR's SAU serves the parties with a copy of the decision, unless a proper petition for rehearing is made.  (Title 2, California Code of Regulations, section 599.910.)

Petition for Rehearing

Title 2, California Code of Regulations, sections 599.859 and 599.907 allow the employee (appellant) or employer (respondent) to file a "petition for rehearing" with CalHR's SAU. The petition must be filed within 30 days of service of the decision. It may be faxed, mailed, or delivered to CalHR's SAU. If the petition is not filed timely, the decision becomes final and CalHR loses jurisdiction to act further in the case.

 

When filing a petition for rehearing, it must be shown that due process was denied during the original hearing; new and compelling information now exists that was unavailable at the time of the original hearing; factual findings were made and/or omitted in error; and/or the original decision contained legal errors.

 

Once CalHR's SAU receives a petition for rehearing, it will notify the opposing party for its response. The petition will also be forwarded to CalHR's Director. If a matter is reset for hearing, CalHR's SAU will send a notice to the parties along with an explanation of the issues to be addressed at the rehearing.

  Updated: 6/21/2016
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