Ala. Admin. Code r. 670-X-5-.08 - Hearing Procedure

Current through Register Vol. 40, No. 6, March 31, 2022

(1) Conduct of Hearings. Hearings on employee appeals from dismissal and on charges brought against employees shall be open to the public and shall be informal. The employee, the appointing authority, and all others concerned shall be given reasonable notice of the time and place of hearing. The parties shall have the right to have subpoenas issued, present witnesses and give testimony. A hearing before a Hearing Officer is intended solely for the purpose of receiving evidence either to refute or to substantiate specific charges. It shall not be made an occasion for irresponsible accusations, unrelated attacks upon the character or conduct of the employer or employee or others, or other derogatory matters having no bearing on the charges under investigation. Any request by a party for a Board member or a Hearing Officer as designated by the Board to recuse himself shall be made in writing to the Director immediately. The written request must cite reasons and the legal basis for the recusal. (See Rules 670-X-18-.02 and 670-X-18-.03 for dismissal and suspension procedure.)
(2) Witnesses. The Hearing Officer shall examine the list of proposed witnesses submitted by each of the parties and shall determine the justification for calling of each witness. Any witness whose testimony is not material, is not relevant or is cumulative of other testimony shall not be required to testify. The Hearing Officer shall examine any objection filed by or on behalf of any witness claiming that the testimony of that witness is not material, is not relevant, is cumulative or if the witness claims a total lack of knowledge of the matter in question. The Hearing Officer shall make a determination of the relevancy, materiality, cumulative nature or lack of knowledge on the part of the witness prior to the commencement of the hearing. The determination to allow or disallow the testimony of a witness shall be based upon an offer of proof by the party offering the testimony of the witness.
(3) Pre-Hearing Conference. The Hearing Officer shall conduct a pre-hearing conference. The Hearing Officer shall have the authority to require the parties to act in furtherance of the hearing process, to include but not limited to:
(a) Setting of an appropriate schedule for the conduct of the hearing;
(b) The crystalization of issues to be presented at the hearing;
(c) The production of documents;
(d) The attendance of witnesses;
(e) The specification of issues and charges;
(f) To issue a pre-hearing conference order which shall be binding on all the parties and shall be amended only upon a showing of good cause;
(g) A Hearing Officer may review pre-hearing issues ruled upon at the pre-hearing conference;
(h) Such other authority as may be necessary for the conduct of the hearing.
(4) Sanctions. Sanctions shall be defined as used in the Alabama Rules of Civil Procedure. The Hearing Officer may recommend to the Board that sanctions be imposed against a party who has:
(a) Failed to comply with the pre-hearing conference order;
(b) Failed to appear;
(c) Failed to prosecute his case;
(d) Failed to comply with orders issued by the Hearing Officer;
(e) Acted in bad faith.
(5) Testimony and Evidence. In taking testimony and in considering the evidence, the Hearing Officer shall follow accepted legal procedure insofar as is practicable, but shall not be bound by the technical Rules of Evidence observed in courts of law. The Hearing Officer may listen to hearsay testimony and may accept depositions and affidavits if such testimony is material and relevant to the issues. The Hearing Officer may also accept the results of lie-detector tests, if such results are material and relevant to the issues.
(6) Counsel or Representation. Parties to a hearing before a Hearing Officer may have representatives of their own choosing. In the event they do not choose such counsel or representatives, they may themselves request the issuance of subpoenas, examine and cross-examine witnesses, make statements, summarize testimony, and otherwise conduct their own hearing.
(7) Procedure. A hearing before a Hearing Officer shall be conducted in accordance with the following order:
(a) Reading of the dismissal action or other charges against the employee and of other pertinent information from the employee's record. The record shall be available to all parties for reference in connection with the hearing.
(b) Presentation of charges against the employee, including testimony of witnesses and other evidence. The employee or his counsel and the Hearing Officer may examine the witnesses.
(c) Presentation of the employee's answer to the charges, including testimony of his witnesses. The parties and the Hearing Officer may also examine these witnesses.
(d) Summation by the parties, if desired by them.
(8) Findings and Decisions. On the basis of testimony and evidence and oral arguments and briefs, if any, the Hearing Officer may recommend that the dismissal of an employee be sustained or may recommend his reinstatement with or without loss of pay, less any interim earnings. Where an employee is found guilty of charges brought against him by an officer, citizen, or taxpayer, and such charges warrant disciplinary action, the Board may order the dismissal of the employee or may order lesser penalties. Where an employee does not appear for his hearing, he has fortfeited his right to oral argument before the Board.

Notes

Ala. Admin. Code r. 670-X-5-.08
Filed September 29, 1981. Amended: Filed March 19, 1986; April 23, 1986. Amended by Alabama Administrative Monthly Volume XXXIII, Issue No. 08, May 29, 2015, eff. 6/24/2015.

Author:

Statutory Authority: Code of Ala. 1975, ยงยง 36-26-6, 36-26-7, 36-26-9, 36-26-27.

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