Ill. Admin. Code tit. 80, § 250.110 - Separations and Demotions
a)
Resignation. An employee having a nonstatus or status appointment, as described
in Sections 250.70 and
250.80, may resign by presenting
a signed resignation to their employer or by demonstrating to the employer by
other means their intent to separate from employment. Upon receipt of a signed
resignation by the employee or other evidence of intent to separate from
employment, the employee will be separated from their employer. The employer
shall maintain all resignations or other documentation of evidence in
accordance with the employer's record retention policy.
b) Leave of Absence
1) Leave of Absence for Classification
Changes. A status employee who accepts a position that represents a promotion
in a class outside their promotional line shall be granted a leave of absence
from a position of their former class for the duration of any intern
appointment, provisional appointment, and/or probationary period in the new
class.
2) Leave of Absence for
Disciplinary Actions. An employee placed on a Disciplinary Suspension or on a
Suspension Notice Pending Discharge shall be placed on a leave of absence from
their position.
3) Leave of Absence
for Disability Leave
A) If an employee is no
longer able to perform the duties and responsibilities of their position in the
class due to a disability as determined by the employer's medical and/or
psychological evaluation procedures and/or in accordance with State and federal
laws, the employee will be required to take a disability leave in accordance
with subsection (b)(3)(B).
B) A
status employee who becomes eligible for disability benefits to be paid by the
employer or, as later determined, by the Illinois State retirement system to
which the employee contributed or becomes eligible for payment benefits as
defined by the Workers' Compensation Act [820 ILCS 305], the Illinois
Occupational Diseases Act [820 ILCS 310], or a State self-insurance program,
shall be granted a disability leave. The disability leave shall be the period
for which the employee applies for such benefits until the time of the
expiration of the benefits or a final administrative decision denying or
terminating the benefits, including any gap in benefit payments between the
expiration of institutional benefits and those available under the approving
authority.
C) The employer may
require an employee to take a medical and/or psychological examination prior to
returning to work after a disability leave. The examination shall be conducted
by a licensed practitioner selected by the employer to determine the physical
and/or mental capability to perform the essential duties of the employee's
position. The employer may supply the examining practitioner with facts
relating to the employee's difficulty or inability to perform the essential
functions of the job and may supply additional information, including but not
limited to physical and mental requirements of the employee's position, duty
statement, job classification specification, and position description. The
employee may also present an alternative opinion provided by a licensed
practitioner to be selected and paid for by the employee. If there is a
difference of opinion, a third outside practitioner shall be selected by the 2
physicians. The employer shall pay for all examinations except those initiated
by the employee.
D) An employee's
refusal to submit to an examination as described in subsection (b)(3)(C), the
unexcused failure to appear for such an examination, or the refusal to release
the results of the examination may be deemed by the employer as an
acknowledgment that the employee is not fit for duty and may subject the
employee to termination actions as defined in subsection (c).
E) A disability leave may be revoked by the
employer upon evidence that the cause for granting the leave was
misrepresented.
F) At the
expiration of all disability benefits, an employee shall be entitled to return
to a position in their class without any loss of status due to the disability
leave, providing that they return upon the expiration of all disability
benefits to which entitled.
G)
Reemployment
i) If an employee does not return
to work at the expiration of all disability benefits and is terminated in
accordance with subsection (c)(2), the employee may, within one year following
the expiration of all disability benefits, request reinstatement and, the
employer shall place the employee's name on the reemployment register in the
class in which they were employed at the time the disability leave was granted
and in accordance with total seniority earned.
ii) If, within one year following the
expiration of all disability benefits, the employee requests reinstatement,
but, because of their disability, is deemed unable to perform the duties in the
class, the employee may be required to pass physical or other tests to
determine employability under the University System.
4) Military Leave of Absence. An
employee shall be granted a Military Leave of Absence in accordance with State
and federal laws and regulations.
5) Notification
A) The employer may select:
i) to notify the Executive Director of all
leaves of absence, including military, disability, or any other leave otherwise
granted; or
ii) to maintain these
records for inspection upon request by the Executive Director or designee
during the on-site audit program or other specified time.
B) The notification shall include the
beginning and ending dates of leaves that exceed 30 calendar days of non-pay
status.
c)
Termination
1) An employee having a non-status
appointment, as described in Section
250.70, may be terminated by
their employer at any time during the training period and/or upon completion of
the work assignment.
2) An employee
on a disability leave, as defined in subsection (b)(3), who has exhausted all
of their disability benefits and is unable to resume the duties and
responsibilities of a position in their class may be terminated from employment
in accordance with subsection (c)(6), or the employer and employee may agree
upon employment in a more suitable classification. The alternative employment
options shall be subject to standard civil service employment
protocols.
3) An employee who fails
to report for duty after a disability leave of absence has expired or has been
denied, disapproved, revoked, or canceled by the approving authority, or any
other failure to report for duty as scheduled after a disability leave of
absence, may be terminated from employment in accordance with subsection
(c)(6).
4) An employee who fails to
report for duty after they have exhausted benefits under the Family and Medical
Leave Act (FMLA) may be terminated from employment in accordance with
subsection (c)(6).
5) An employee
who fails to maintain their right to work in the United States, as evidenced by
a Permanent Resident Card (also known as a Green Card), an Employment
Authorization Document (also known as a work permit), or an employment-related
visa granted by the government of the United States, shall have their
employment terminated as of the last date that employee had a right to work in
the United States. It is the responsibility of the employee to do all things
necessary to maintain their right to work in the United States, as governed by
U.S. law. The employer shall notify the employee of the termination.
6) Appropriate notification shall be provided
to an employee, as specifically referenced in subsections (c)(2), (c)(3) and
(c)(4), which shall include the notification provisions outlined in this
subsection (c)(6).
A) The employer shall
notify the employee that they will be terminated from the employer's service to
become effective 7 calendar days from the date of mailing of the notification
to the employee. The notification shall be sent by an overnight delivery
service that requires a signature upon receipt to the most recent address of
the employee as shown on the employer's records.
B) At any time prior to the effective date of
termination, the employee shall have the opportunity to provide to the employer
evidence of the reason for the unauthorized absence. The employer shall revoke
the termination if the employee provides satisfactory evidence of the reason
for the unauthorized absence. If the employer determines that the evidence is
not satisfactory, the employer shall notify the employee within 2 workdays that
the termination will remain in effect.
C) Pursuant to Section
250.130 (Review Procedures), the
employee may request a review of the employer's final notice of termination.
The review is limited to a determination of whether this Section has been
properly applied and whether the employer's decision is deemed arbitrary or
capricious. In the event a review is not requested within the allotted
timeframe, the employee's termination from service shall be effective 7
calendar days after the original notification.
d) Layoff
1) The Executive Director shall be provided
with all notices of layoff within 3 workdays of any notice to an employee, of
all employees on layoff status, together with the dates of the beginning of
layoff and of return to employment from layoff status, when the layoff exceeds
30 consecutive workdays. A status employee shall receive a written notice, at
least 30 calendar days in advance of the effective date of the layoff when the
layoff exceeds 30 consecutive workdays; however, the effective date of layoff
may be extended up to 15 calendar days without the requirement of further
notice.
2) Whenever it becomes
necessary to lay off one or more employees, except as provided in subsection
(d)(3), the employee who has the least amount of service in the class shall be
laid off first, and additional layoffs shall be made in the ascending order of
the place of the employee on the service and seniority lists for that
class.
3) An employee who is the
incumbent of a position for which the Executive Director has authorized
specialized certification under Section
250.60(d)(9),
or who is the incumbent of a position that has previously been identified as
requiring specialized training or experience as required by the position in
accordance with minimum acceptable qualifications for the class, may not be
bumped by another employee with greater seniority unless the employee with
greater seniority possesses the special and identified qualifications
authorized for the incumbent's position.
4) Whenever it becomes necessary to reemploy
one or more employees in a class, the employee last laid off by seniority shall
be reemployed first, and further reemployment shall be made in the order of
seniority until the reemployment register for that class is exhausted. Work of
short duration requiring reemployment of one or more employees will not require
a new written 15 calendar day advance notice of layoff if the work period is to
be 5 consecutive working days or less and the work is emergent in
nature.
5) A status employee who is
subject to layoff from a part-time position may bump an employee in a full-time
status position, providing the part-time employee's equivalent full-time
accrued seniority based on hours in pay status is greater than that of the
least senior employee in a full-time position. A full-time status employee who
is subject to layoff may bump the least senior full-time employee, who then may
bump the part-time employee having the highest percent-time appointment,
providing the full-time employee has more accrued seniority.
6) Names of employees laid off during their
probationary periods shall be returned to the register from which they were
certified to their position in accordance with service in a status appointment
earned as of the date of layoff.
e) Disciplinary Suspension. An employer may
suspend an employee as a disciplinary measure for not more than 30 calendar
days.
1) The employer shall discuss the
specific problem pertaining to the contemplated suspension with the employee
and the Human Resource Director or their designee before a suspension notice is
served. The employee shall be told at that time that suspension is being
considered.
2) In imposing a
disciplinary suspension, the employer shall serve a written suspension notice
on the employee showing the reason or reasons for the suspension, and shall,
within 3 workdays, report the suspension to the Executive Director and shall
send a copy of the notice served on the employee, along with proof of service,
to the Executive Director.
3)
Causes justifying suspension, not discharge as provided for in subsection
(f)(1), shall include, but are not limited to: unauthorized and unexcused
absence; leaving work without authority; failure to accurately record one's
arrival for and/or departure from work; habitual lateness; recording another
person's arrival for and/or departure from work; falsification of documents;
key duplication and/or unauthorized possession of keys; misrepresentation of
absence; falsification of records; refusal to do work assigned; failure to
follow work schedules; failure to follow time schedules; rude, disrespectful,
and/or unprofessional behavior; failure to adhere to departmental regulations
of appearance; disregard of safety regulations; careless workmanship resulting
in spoilage, waste, or delay; unauthorized use of institutional property;
gambling on institutional property; creating or contributing to unsanitary
conditions; horseplay or scuffling; fighting; sleeping during working hours;
unauthorized visiting; failure to follow official university policy and
procedures; reporting to work with one's mental or physical ability, alertness,
or judgment impaired by substances and/or fatigue in a way that makes it
impracticable or unsafe to perform one's job duties; and inability or failure
to perform assigned duties in a competent and satisfactory manner.
AGENCY NOTE: It is to be noted that an employee's allegation that a Disciplinary Suspension was unfairly imposed is subject to the grievance procedure established by the employing institution but is not reviewable by the University System.
f) Discharge Proceedings and Effective Date
of Discharge
1) Reason for Discharge. Causes
justifying discharge and any suspension during the discharge proceedings shall
include, but are not limited to:
A) all those
listed as cause for suspension if they become recurring offenses; and
B) theft; consuming intoxicating liquors or
other illicit drugs on institutional time or property; consuming intoxicating
substances resulting in mental impairment at work; malicious damage to
property, tools, or equipment; inciting or instigating a physical altercation,
or continuing a physical altercation beyond immediate self-defense; immoral or
indecent conduct that violates common decency or morality; conduct that is a
clear departure from ordinary standards of honesty, good morals, justice, or
ethics so as to cause shock to the moral sense of the community.
2) Pre-discharge Proceedings
A) Notification Procedures. Prior to
initiating any proceedings before the Merit Board for the discharge of an
employee, the employer shall notify the employee in writing, served upon the
employee in person if the employee is present on the job or, otherwise, by an
overnight delivery service that requires signature upon receipt to the most
recent address of the employee as shown on the employer's records, and also by
First Class U.S. Mail, of the employer's intention to initiate the proceedings.
The notification shall advise the employee of the substance of the charges
proposed to be filed in sufficient detail to inform the employee of the nature
of the conduct on which the proposed charges are based. (Note: It is the
employee's responsibility to maintain a current mailing address with their
employer.) The notification shall also advise the employee that either or both
of the following options are available to the employee:
i) within 3 workdays after service of the
employer's notification, the employee may notify the employer of their decision
to require the employer to hold a conference with the employee or their
representative for the purposes of responding to the matters contained in the
notification and of attempting to achieve a reconciliation or understanding;
and
ii) within 3 workdays after
service of notification, the employee may deliver to the employer a written
response to the matters contained in the employer's notification; provided
that, if the employee elects to require the conference identified in subsection
(f)(2)(A)(i), at that conference the employee may request and receive an
opportunity to respond further in writing within 3 workdays after the
conclusion of the conference.
B) Employer's Decision
i) Within 7 workdays after compliance with
the provisions of subsection (f)(2)(A), the employer shall either:
* notify the employee that no further action will be taken to initiate discharge proceedings with the Merit Board against the employee based solely on the matters contained in the employer's notification; or
* initiate proceedings before the Merit Board under this subsection (f) seeking the discharge of the employee based solely on the matters contained in the employer's notification.
ii) The employer's election not to initiate
discharge proceedings with the Merit Board shall not preclude the employer from
imposing a suspension in accordance with subsection (e) or some lesser
penalty.
C) Excused
Absence with Pay. An employee who has been served with an employer's
notification as provided in subsection (f)(2)(A) may be placed on an excused
absence with pay during all or any part of the period covered by this
subsection (f)(2) to provide the employer an opportunity to investigate serious
charges.
3) Actual
Discharge Proceedings
A) Initiating Discharge
Proceedings. Proceedings before the Merit Board seeking the discharge of an
employee shall be initiated by the employer by completing and filing a Written
Charges for Discharge form with the Merit Board/University System, employee,
legal counsel for the employer, and the employer, setting forth the causes for
discharge in sufficient detail to inform the employee of the nature of the
conduct on which the charges are based. The Written Charges for Discharge form
shall be set forth in separately numbered charges. Also, the employer shall
develop and attach a document that contains the dates, names of persons, places
and facts necessary to properly allege the cause for discharge. If a breach of
duty, statute, or rule of the employer is alleged, the statute, law, or rule
shall be cited in connection with the charge. Any and all exhibits that the
employer plans to present at the time of the hearing shall be submitted in
accordance with subsection (f)(5)(G) or as appropriate to the circumstances.
The exhibits shall not be attached to the Written Charges for Discharge
form.
B) Written Charges for
Discharge Form. The Written Charges for Discharge form will be provided by the
University System and the employer shall include the following information on
the form: employee's contact information as it appears in the employer's
records; civil service class and position number; place of employment; charges
in numbered format and clearly stated; DER's signature; and the "Proof of
Service on Employee" section shall be completed in its entirety. The employer
shall also attach a "Certification" stating that all procedures set forth in
subsection (f)(2) have been followed and that there has been full compliance
with any options elected by the employee. The certification shall include the
employee's name; civil service class and position number; signed and dated. At
the time the Written Charges for Discharge form and the certification are filed
with the Merit Board (University System), the employer shall also serve copies
upon the employee in person if the employee is present on the job; otherwise,
service shall be by an overnight delivery service that requires a signature
upon receipt to the most recent address of the employee as shown on the
employer's records, and also by First Class U.S. Mail. The employer shall file
proof of service with the Merit Board (University System). The DER shall sign
the Written Charges for Discharge form to be filed with the Merit Board
(University System) and the employer.
C) Amended Written Charges for Discharge
Form. At any time prior to the commencement of the hearing, the Executive
Director may direct or authorize the Written Charges for Discharge form to be
amended to correct technical defects or to set forth additional facts or
allegations that clarify the subject matter of the original charges. The
technical amendments shall relate back to the original proof of service date of
the Written Charges for Discharge form. The employer shall serve copies of the
Amended Written Charges for Discharge form upon the employee in person if the
employee is present on the job; otherwise, service shall be by an overnight
delivery service that requires a signature upon receipt to the most recent
address of the employee as shown on the employer's records, and also by First
Class U.S. Mail. The employer shall file "Proof of Service on Employee" for the
amended charges, on the form provided by the University System. Nothing in this
subsection (f)(3)(C) shall change the timing requirements in subsection
(f)(5).
D) Suspension Without Pay.
An employee who has been served with Written Charges for Discharge in
accordance with subsections (f)(3)(A) and (B) and/or (C) may be suspended
without pay by the employer during all or any part of the period that the
discharge proceeding is pending, and until final disposition, if the employer
is of the opinion that the employee's presence on the job might constitute a
substantial risk of injury to life or property, or might cause a disruptive
effect on the employer's operations. Any suspension without pay shall become
effective on the date the employer serves the Suspension Notice Pending
Discharge form upon the employee. The Suspension Notice Pending Discharge form
may be served with the Written Charges for Discharge form or on any date
thereafter, or until a decision is made by the Merit Board. The Suspension
Notice Pending Discharge form shall include the following: employee's contact
information as it appears in the employer's records; civil service class and
position number; place of employment; date of suspension; date the Written
Charges for Discharge form was served; DER's signature; and proof of service on
employee shall be completed in its entirety. Service shall be upon the employee
in person if the employee is present on the job; otherwise, service shall be by
an overnight delivery service that requires a signature upon receipt to the
most recent address of the employee as shown on the employer's records, and
also by First Class U.S. Mail. The employer shall file the Suspension Notice
Pending Discharge form, with the Merit Board (University System), employee,
legal counsel for the employer, and employer.
4) Effective Date of Discharge When There Is
No Request for Hearing. Once an employer files the Written Charges for
Discharge on the employee and the employee does not file a written request for
a hearing with the Secretary for the Merit Board within the required 15
calendar days from the date specified in the "Proof of Service on Employee"
section on the Written Charges for Discharge form, the employee's discharge
shall become effective at the end of the 15-day period. No further action shall
be taken by the Merit Board. The Secretary for the Merit Board shall promptly
notify the employer of the employee's failure to file a timely written request
for a hearing.
5) Written Hearing
Request/Timing of Parties' Actions
A) Written
Request for Hearing. An employee who has been served with Written Charges for
Discharge may request a hearing by filing a written request for a hearing with
the Secretary for the Merit Board within 15 calendar days from the "Proof of
Service on Employee" section on the Written Charges for Discharge form. Any
request for a hearing must include a postal address, a telephone number where
the employee can be reached, and/or an email address where notices to the
employee under this subsection (f) shall be sent. If the employee provides a
personal email address, the employee agrees to accept notices under this
subsection (f). The employee shall notify the Secretary for the Merit Board and
the employer of any change to their contact information. The Secretary for the
Merit Board shall immediately acknowledge receipt of the request for a hearing
and notify the employer that the employee has filed a request for a hearing.
Thereafter, further proceedings shall be as provided in this subsection (f),
and any discharge shall be effective on the date of the Decision and Order of
the Merit Board, unless otherwise expressly stated in the order.
B) Notice of Convening of Hearing and Order.
The University System shall issue a Notice of Convening of Hearing to the
parties of record. This notice shall contain the date, time, and place of the
hearing or manner (in-person or via a video conference) at the sole discretion
of the Executive Director. The University System may also issue an order
providing further instructions to the parties of record.
C) Requests for Documents and Other Tangible
Items. Any party may, by written request, direct any other party to produce for
inspection, copying, reproduction, photographing, testing, or sampling
specified documents, including electronically stored information, objects, or
tangible things relevant to the Written Charges for Discharge or the employee's
defense to the charges.
i) The request shall
specify a reasonable time and place for production or review of the requested
items no fewer than 10 calendar days prior to the scheduled hearing.
ii) A party directed to produce documents or
other tangible items that are unable to produce the requested items by the date
requested by the other party may file an objection or request an extension of
time to produce the requested items. The objection or request for an extension
of time shall be sent to the Executive Director and shall state the cause of
the anticipated delay.
iii) All
written requests or objections under this subsection (f)(5)(B) shall be served
on the Secretary for the Merit Board at the same time it is served on the other
party.
iv) All actions taken under
this subsection (f)(5)(D) shall be taken as early as practicable and shall be
taken in good faith.
D)
Evidence Depositions. Upon request to the Executive Director and upon good
cause shown (which shall include, but is not restricted to, the potential
unavailability of a witness at the time the hearing is scheduled, scheduling or
travel arrangement considerations, or agreement of the parties), any party may
request a deposition of any witness to be taken for evidence in a hearing. The
use of this provision shall be severely restricted and designated as a "last
resort" option. If desired, subpoenas may be requested upon application to the
Executive Director in a manner consistent with this Part. The deposition shall
proceed in the manner provided by law for depositions in civil actions in the
circuit courts of the State of Illinois.
E) Subpoena. A request for a subpoena shall
be directed to the Executive Director at least 5 calendar days before the
scheduled hearing unless an exception is granted by the Executive Director. A
subpoena requests may be granted if reasonably designed to produce or lead to
the production of evidence related to the alleged charges, and the terms of
compliance are reasonable given the time frames and other circumstances. The
party requesting the subpoena shall be responsible for service and costs
related to the witness's subpoena. A subpoena may be served by personal
delivery of an executed original to the individual or by leaving an executed
original at the individual's usual place of abode, with some person of the
family who is age 13 years or older, provided the server also sends a copy of
the subpoena, postage prepaid, addressed to the individual at the individual's
usual place of abode. The fees of the witnesses for attendance and travel shall
be the same as the fees of witnesses before the circuit courts of the State of
Illinois. A subpoena is effective throughout the course of the proceedings. A
request for a subpoena must be submitted in writing and include the following:
i) the name of the employee, employer, and
case number;
ii) the name and
address of the witness sought;
iii)
date and time of the hearing;
iv)
any specific documents the witness will be required to bring;
v) a brief statement of the relevant facts or
testimony that the witness will be providing; and
vi) information regarding the party
requesting the subpoena.
F) Witness and Proposed Exhibit Lists and
Proposed Exhibits for Hearing
i) At least 5
workdays prior to the hearing, each party shall serve upon the other party and
file a copy with the Secretary for the Merit Board, to be submitted to the
Hearing Board or Hearing Officer, the following information to the extent
available at that time:
ÿ a list of the names and addresses of the witnesses the party proposes to call in its case-in-chief;
ÿ all documents the employer proposes to offer in its case-in-chief shall be pre-marked using Arabic numerals (e.g., 1, 2, 3 numbered; and
ÿ all documents the employee proposes to offer in its case-in-chief shall be pre-marked using capital English letters (e.g., A, B, C).
ii) The University
System will provide each party Bates numbered documents of all the proposed
exhibits.
G)
Commencement of Discharge Hearing. The Executive Director, the Hearing Board or
Hearing Officer, the employee, and the employer shall all make good faith
efforts to commence the hearing within 10 calendar days after receipt of the
employee's written request for a hearing, but in no event shall the hearing
commence later than 45 calendar days after service of the Written Charges for
Discharge as stated in the proof of service, unless a continuance is granted
pursuant to subsection (f)(15)(B). Dilatory tactics or actions will not be
permitted. The Executive Director, the Hearing Board or Hearing Officer, the
employee, and the employer shall all make good faith efforts to conduct the
hearings in no more than 3 hearing days unless justice, due process, and
fundamental fairness require otherwise.
6) Hearing Proceedings
A) Appointment of Hearing Board or Hearing
Officer. Upon receipt of the employee's written request for a hearing on the
Written Charges for Discharge, the University System shall promptly appoint a
Hearing Board or Hearing Officer to hear the charges and the employee's
response.
B) Disqualification of
Assigned Hearing Board or Hearing Officer. A Hearing Board or Hearing Officer
may be disqualified on grounds of bias or conflict of interest. An adverse
ruling, or the fact that a Hearing Board or Hearing Officer has had contact
with the University System, by itself, shall not constitute bias or conflict of
interest.
i) Disclosing a Potential Conflict
of Interest. The Hearing Board or Hearing Officer shall communicate with the
Executive Director and all parties immediately upon suspecting that the Hearing
Board or Hearing Officer may have a conflict of interest.
ii) Whenever any party believes a Hearing
Board or Hearing Officer should be disqualified from conducting an assigned
proceeding, that party may file a request with the Executive Director to
disqualify the Hearing Board or Hearing Officer, setting forth by affidavit the
alleged grounds for disqualification, with proof of service on all parties. The
Executive Director shall rule and make the final determination on all requests
for disqualification.
iii) The
Executive Director, on their own motion, may disqualify a Hearing Board or
Hearing Officer if the Hearing Board or Hearing Officer has deviated from, or
failed to comply with, this subsection (f), and such disqualification, in the
judgment of the Executive Director, is required for justice, due process, and
fundamental fairness.
iv) Upon the
disqualification of any Hearing Board or Hearing Officer under this subsection
(f)(6)(B), a new Hearing Board or Hearing Officer shall be appointed by the
Executive Director. If the hearing has already been convened, the parties of
record shall be notified of the disqualification and the appointment of a new
Hearing Board or Hearing Officer. The Executive Director shall make all other
such orders as required for justice, due process, and fundamental
fairness.
C) Role and
Responsibilities of the Hearing Board or Hearing Officer. The Hearing Board or
Hearing Officer shall be responsible for the following activities:
i) conduct the pre-hearing
conference;
ii) facilitate the
timely completion of the hearing process, taking necessary steps to avoid
delay;
iii) establish reasonable
limits on the duration of witness testimony;
iv) limit repetitive or cumulative
testimony;
v) rule on motions,
objections, or evidentiary questions;
vi) hear evidence as presented at the hearing
by the employer and the employee on behalf of their respective positions (the
evidence may include matters in aggravation, mitigation, and justification,
which may pertain to the question of "just cause" for discharge);
vii) direct questions to witnesses at any
time, but restrict questioning to the clarification of the testimony already
presented;
viii) prepare and
transmit to the Merit Board signed findings of fact within 15 calendar days
after receipt of the transcript and exhibits of the hearing proceedings. The
findings of fact shall set forth each of the written charges alleged in the
Written Charges for Discharge, including an evaluation of the facts presented
by the employer and employee with respect to each charge, and based on this
evaluation, a determination as to whether the charges are sufficiently
supported by the evidence presented. The findings of fact shall be based
exclusively on the evidence and on matters officially noticed. The findings of
fact presented by the Hearing Board or Hearing Officer are advisory only to the
Merit Board. It is not the role of the Hearing Board or Hearing Officer to
determine whether just cause for discharge exists. The determination of just
cause is the sole province of the Merit Board; and
ix) enter any order that further carries out
the purpose of this subsection (f)(6)(C).
D) Ex Parte Communications
i) Except in the disposition of matters
authorized by law to entertain or dispose of on an ex parte basis, the Merit
Board, the Executive Director, employees of the University System, and the
assigned Hearing Board or Hearing Officer shall not, after the Notice of
Convening of Hearing has been issued to the parties of record, communicate,
directly or indirectly, with any party or the party's representative regarding
any issue of fact or with any person or party in connection with any other
issue regarding the case, except upon notice and opportunity for all parties to
participate. However, the Merit Board, the Executive Director, employees of the
University System, and the Hearing Board or Hearing Officer may communicate
with each other. Also, members of the Merit Board and the Hearing Board or
Hearing Officer may have the aid and advice of one or more personal assistants
not associated or affiliated with any party.
ii) Neither party shall make direct contact
with the Hearing Board or Hearing Officer in any manner or for any purpose
after the Notice of Convening of Hearing has been issued to the parties of
record.
iii) Communications
regarding procedure, including interpretation and application of Section 36o of
the Act, subsection (f), and related procedures, are not considered ex parte
communications.
E) Open
Hearings. All hearings shall be open to the public unless, upon motion of
either party, the Hearing Board or Hearing Officer finds it necessary to close
the hearing or parts of the hearing in instances in which personal safety is of
concern or when confidential testimony/exhibits are to be referenced or
revealed. There shall be a presumption that hearings will be closed only under
extraordinary circumstances.
F)
Transcript of Hearing. A transcript of the hearing, including the exhibits
admitted at the hearing, shall be made and shall be filed with the Secretary
for the Merit Board as soon as possible following the conclusion of the
hearing. Transcripts and exhibits will be provided by the Secretary for the
Merit Board to all parties simultaneously. No party may request or obtain a
copy of the transcript or exhibits of the hearing from the court reporter or
any other source. If a party or their representative receives the transcript or
exhibits of the hearing from any source other than the Secretary for the Merit
Board, the party shall immediately send, without first having read the
transcript or exhibits and without retaining any copy, to the Secretary for the
Merit Board.
G) Findings of Fact by
the Hearing Board or Hearing Officer. Within 15 calendar days after receipt of
the transcript and exhibits from the Secretary for the Merit Board, the Hearing
Board or Hearing Officer shall file its findings of fact and any other
recommendations with the Secretary for the Merit Board unless that time is
extended by the Executive Director for good cause shown. For the purpose of
this subsection (f)(6)(G), good cause shall include, but not be limited to,
sickness, required attendance at court proceedings, death, and weather
conditions that prevent the members of the Hearing Board or Hearing Officer
from meeting.
H) Failure of Hearing
Board or Hearing Officer to Submit Findings of Fact. If, by 15 calendar days
after receipt of the transcript and exhibits from the Secretary for the Merit
Board, the findings of fact have not been received by the Secretary for the
Merit Board, the Executive Director shall either appoint another approved
Hearing Board or Hearing Officer that shall then review the record and submit
findings of fact within 10 calendar days after the appointment, or the
Executive Director shall give written notice to the Hearing Board or Hearing
Officer and to all parties to the proceeding that they will, within 10 calendar
days, discontinue the hearing and commence a new hearing and that the present
Hearing Board or Hearing Officer will be dismissed without pay. Within this
10-day period following the Executive Director's notice, the Hearing Board or
Hearing Officer can appeal to the Executive Director by showing cause why time
should be extended.
I)
Certification of Hearing Record. The Executive Director shall certify as the
Hearing Record the Written Charges for Discharge, the Suspension Notice Pending
Discharge, the employee's request for a hearing, the transcript and exhibits,
the Hearing Board's or Hearing Officer's findings of fact and other
recommendations, and other documents that have been filed. Upon certification
by the Executive Director, the Secretary for the Merit Board shall, by an
overnight delivery service that requires a signature upon receipt, immediately
forward a copy of the Hearing Record, along with notice that the Hearing Record
has been certified, to all parties of record.
J) Objections to Hearing Record. Any
objections to the form or contents of the Hearing Record, or briefs, abstracts,
or excerpts from the Hearing Record, or arguments, motions, or recommendations
relating to the hearing proceedings or the Hearing Record, or requests for
further hearing or for permission to supplement further the Hearing Record by
other evidence, must be filed with the Secretary for the Merit Board within 14
calendar days after the date of the overnight delivery service that the Hearing
Record has been certified, with proof of service on all parties. If such an
objection is made, the non-objecting party may file an answer to the objection
with the Secretary for the Merit Board within 14 calendar days after the date
of the overnight delivery service of the Objection, with proof of service on
all parties. No further briefs and/or arguments in response to these filings
will be permitted unless expressly authorized by the Executive Director or the
Merit Board or its Chair.
7) Conduct of Hearing
A) Pre-hearing Conference. In all hearings,
it is recommended that the Hearing Board or Hearing Officer hold a pre-hearing
conference immediately preceding the hearing on the first day of the hearing.
The Hearing Board or Hearing Officer shall give the parties an opportunity to
discuss issues and share information at the pre-hearing conference that will
allow them to present their cases in a fair, efficient, and timely manner.
Generally, the Hearing Board or Hearing Officer shall conduct the pre-hearing
conference for the purpose of achieving one or more of the following points, as
determined by the Hearing Board or Hearing Officer on a case-by-case basis:
i) defining and simplification of the
issues;
ii) negotiating admissions
or stipulations of fact to avoid unnecessary proof;
iii) reviewing each party's witness and
exhibit list;
iv) limiting
redundant witness testimony or duplication of evidentiary material, if
necessary;
v) determining the
length of time each party will need to present its case;
vi) exchanging exhibits;
vii) discussing any matter that may aid in
the efficient and timely disposition of the case; and
viii) work with each party to determine if a
settlement agreement can be achieved. If a settlement is reached during the
pre-hearing conference, the hearing shall be formally convened, and the
parameters of the settlement agreement shall be entered into the record in
written form or by testimony/statement and agreement by each party.
B) Length of Pre-hearing
Conference. The length and scope of the pre-hearing conference are at the
discretion of the Hearing Board or Hearing Officer but should generally be
conducted within a one-hour timeframe.
8) Evidence and Motions
A) Admissibility of Evidence
i) As a general matter, the rules of evidence
and privilege as applied in civil cases in the circuit courts of the State of
Illinois shall be followed. However, evidence not admissible under those rules
may be admitted (except when precluded by statute) if it is of a type commonly
relied upon by reasonably prudent persons in the investigation and conduct of
serious matters of this nature. Irrelevant, immaterial, or unduly repetitious
evidence shall be excluded.
ii)
Consistent with these requirements and in order to expedite the hearing, any
part of the evidence may be received in written form, provided the parties
interests are not jeopardized.
iii)
Employee performance records or past disciplinary records are admissible and
relevant for the purpose of mitigation or aggravation, except if otherwise
excluded by a local employer policy or collective bargaining
agreement.
B) Oath or
Affirmation. All testimony shall be presented under oath or
affirmation.
C) Objections.
Objections to testimony or evidentiary offers shall be noted in the
record.
D) Standard of Proof. The
standard of proof applied by the Hearing Board or Hearing Officer when
evaluating the charges will be the preponderance of the evidence.
E) Notice Taken by Hearing Board or Hearing
Officer. The Hearing Board or Hearing Officer may, on its own motion or upon
motion of one of the parties, take notice of matters of which the circuit
courts of the State of Illinois take judicial notice.
F) Non-Dispositive Motions. The Hearing Board
or Hearing Officer has the authority to rule on all motions that do not dispose
of the proceedings. Examples of motions that can be ruled on by the Hearing
Board or Hearing Officer are motions in limine or motions to suppress evidence.
Motions directed at the Hearing Board or Hearing Officer shall be presented at
the pre-hearing conference, if possible, and actions taken by the Hearing Board
or Hearing Officer shall be entered into the record.
G) Dispositive Motions. Motions that dispose
of the proceedings must be directed to the Merit Board. Examples of motions
that are to be directed to the Merit Board are motions to dismiss, motions to
decide a proceeding on the merits, or motions claiming lack of jurisdiction.
Motions must be filed with the Secretary for the Merit Board within 14 calendar
days after the date of the overnight delivery service of the certified Hearing
Record. Motions will be ruled on by the Merit Board at the Merit Board meeting
in which the case is being considered. The filing of a motion of this nature
shall not be allowed to cause any delay in the proceedings.
9) Order of Hearing
A) Convening of Hearing. All hearings shall
be convened by and under the control of the Executive Director or authorized
representative.
B) Recording of
Pre-hearing Conference Information. The Hearing Board or Hearing Officer shall
enter into the record any action taken and any agreements made by the parties
as to the matters considered.
C)
Excluding Witnesses from Hearing Room. The Executive Director, or authorized
representative, shall request all persons who have been asked to serve as
witnesses, other than a party or employer representative, to be excluded from
the hearing room while the hearing is in process, except during their own
testimony and cross-examination. Except as they might intervene, or be
requested to intervene, the Executive Director, or authorized representative,
shall empower the Hearing Board or Hearing Officer to proceed with the hearing
in such a manner as to provide the employer and the employee a full opportunity
to present their positions to the Hearing Board or Hearing Officer.
D) Stipulations. Parties may agree by
stipulation upon any facts involved in the hearing. The facts stipulated shall
be considered as evidence in the hearing. It is the policy of the Merit Board
to encourage the stipulation of facts whenever practicable.
E) Opening Statements. The parties may make a
brief opening statement at the beginning of the hearing. The employer shall
proceed first, followed by the employee. Opening statements may be waived or
may be reserved and presented at the commencement of the party's
case-in-chief.
F) Employer's Case.
The employer shall first present its case-in-chief, with an opportunity for the
employee to cross-examine the employer's witnesses. The employee may be called
as an adverse witness during the course of the hearing.
G) Employee's Case. The employee shall then
present their case-in-chief, with an opportunity for the employer to
cross-examine the employee's witnesses.
H) Rebuttal. Each party may call rebuttal
witnesses if found to be necessary by the Hearing Board or Hearing
Officer.
I) Closing Arguments.
After both parties have concluded the presentation of their case, the Hearing
Board or Hearing Officer may call for a break in the proceedings for up to 30
minutes to allow each party to make final preparations for their closing
argument. After any such break, the parties may make an oral closing argument.
The employer shall proceed first, followed by the employee. The employer shall
be permitted a brief rebuttal at the end of the employee's closing
argument.
J) Closing the Hearing.
The hearing shall be closed when the employer and the employee have had a fair
and reasonable opportunity to present their positions to the Hearing Board or
Hearing Officer.
K) Motion for
Permission to Make Oral Argument. Oral argument is reserved for presentation of
extraordinary matters regarding the discharge case. A party desiring to present
oral argument before the Merit Board in cases of discharge must file a Motion
to Make Oral Argument with the Secretary for the Merit Board within 14 calendar
days after the date of the overnight delivery service of the certified Hearing
Record, with proof of service on all parties. The Motion must specifically
state the extraordinary issues to be presented, any relevant law, and a
synopsis of the argument to be presented. Any Motions without the required
information shall not be considered by the Merit Board. The Merit Board will
decide whether to grant the Motion for Permission to Make Oral Argument at the
same meeting where the case is to be decided. Oral Argument shall not be
intended to be a recitation or summary of either party's case as presented at
the hearing. The Merit Board's chair has the authority to halt or redirect
either party's oral argument as circumstances warrant.
10) Failure to Appear. Failure of a party to
appear on the date set for the hearing may result in a loss of rights by
default.
A) Failure to Appear by Employee
i) A Notice of Convening of Hearing will be
sent to all parties of record confirming the date, time, and place of the
hearing. If an employee or their representative is not present on the
designated hearing date and time, the Executive Director or authorized
representative shall try to make reasonable contact with the employee or their
representative immediately. If, within a reasonable time on the hearing date,
the Executive Director or authorized representative is unable to contact the
employee, the hearing will commence.
ii) The Executive Director or authorized
representative shall commence the hearing with an opening statement. At the
conclusion of the opening statement, if the employee or their representative
has still failed to appear, the hearing will be suspended for 3 workdays.
During this 3 workday period, the Executive Director or authorized
representative shall try to make contact with the employee or their
representative using the last known address, phone, e-mail or any similar
method as shown on the employee's request for a hearing.
iii) If the employee or their representative
cannot be reached within 3 workdays or if the employee is unable to produce a
reasonable explanation for failure to attend the hearing, the hearing will be
closed, and the employee's discharge shall become effective at the end of the
15-day period of the date on the Proof of Service on Employee, as found on the
Written Charges for Discharge form, without further action by the Merit Board.
The Merit Board/University System office shall notify the parties of record
immediately of the action.
iv) If
the employee or their representative has been reached within 3 workdays and has
a reasonable explanation for not attending the hearing, the Executive Director
or authorized representative shall schedule a new hearing date. A new Notice of
Convening of Hearing will be issued to the parties of record, and the Executive
Director or authorized representative shall appoint either the same Hearing
Board or Hearing Officer or appoint a new Hearing Board or Hearing Officer to
conduct the hearing.
B)
Failure to Appear by Employer. If the employer's representative fails to appear
at the hearing and cannot be reached by the end of the next business day, or if
the employer is unable to produce a reasonable explanation for the failure to
attend the hearing, the hearing will be closed, and the employee will be
reinstated to their position without loss of compensation as of the Proof of
Service on Employee date on the Written Charges for Discharge form.
C) Reasonable Explanations. Reasonable
explanations can include, but are not limited to: injury on the day or
preceding day of the scheduled hearing, traffic accident, death or significant
injury of a family member, or other cause that is deemed reasonable by the
Executive Director or authorized representative. In any event, the party that
failed to appear is required to demonstrate that there was a reasonable effort
made to contact the Merit Board/University System office.
11) Settlement Agreements. Following the
request for a hearing by the employee set forth in subsection (f)(5)(A), the
employer and the employee may enter into a settlement agreement that may
include a suspension of no more than 120 calendar days. Such a suspension is
only permissible if the employer files with the Executive Director the terms of
that suspension, which must include a signed waiver of the rights provided by
Section 36o of the Act. The employer is otherwise limited to a suspension of no
more than 30 calendar days as set forth in subsection (e).
12) Final Decision of the Merit Board. In the
course of reaching its decision, the Merit Board may request the Executive
Director to make recommendations that they deem appropriate with respect to the
discharge proceedings. Nothing in this subsection (f)(12) is intended to
eliminate or limit the Merit Board's discretion to determine the appropriate
disposition on a case-by-case basis. The Merit Board shall enter findings of
fact and shall order the following decision and order or any other decision and
order it deems appropriate:
A) Discharge, if
just cause is found to exist. No employee shall be discharged except for just
cause. Just cause is defined as some substantial shortcoming that renders the
employee's continuance in their position in some way detrimental to the
discipline and efficiency of the service and that the law and sound public
opinion recognize as good cause for the employee no longer holding the
position; or
B) Reinstatement, if
just cause for discharge is found not to exist. An employee shall be reinstated
as follows:
i) Reinstatement with no loss of
compensation when none or few of the significant charges are proven and/or when
the proven charges do not justify disciplinary action.
ii) Reinstatement with an unpaid suspension
of a minimum of 3 calendar days to a maximum of 120 calendar days when the
proven charges do not rise to the level of just cause for discharge, but some
disciplinary action is justified based on the severity of the proven charges.
If the Merit Board orders reinstatement with a suspension, any time served
while on suspension pending discharge shall be applied towards the fulfillment
of the suspension. The Merit Board shall not order a reinstatement with a
suspension past the day of the action taken by the Merit Board.
13) Final Decision and
Order of the Merit Board. The Secretary for the Merit Board shall immediately
forward copies of all Merit Board orders to the employer and the employee by an
overnight delivery service that requires signature upon receipt. The employer
is required to enact the Decision and Order of the Merit Board in a timely
manner. No later than 14 calendar days after the date that a copy of the final
Notice of Decision and Order of the Merit Board has been served upon the
parties, any employee who has been reinstated, as provided in subsection
(f)(12)(B), shall be returned to pay status. The employer shall take all other
required actions to enact the Decision and Order of the Merit Board within 30
days after the serving of the Notice of Decision and Order of the Merit
Board.
14) Administrative Review.
All final decisions of the Merit Board shall be subject to appeal by the
parties to the proceedings under the Administrative Review Law [735 ILCS 5/Art.
III]. A complaint for administrative review must be filed and summons issued
within 35 days after the date that a copy of the final Merit Board decision has
been served upon the party affected. A final decision of the Merit Board shall
be deemed served either when personally delivered or when deposited in the
United States mail in a sealed envelope or package, with postage paid,
addressed to the party affected by the decision at their last known residence
or place of business.
15) Time
Periods for Proceedings
A) Requests for
Extensions. On the motion of either party with notice to the other party, or by
independent action of the Chair of the Merit Board or the Executive Director
communicated to both parties, any time period set forth in this subsection (f)
may be extended by the Chair of the Merit Board or by the Executive Director
for good cause shown. The Executive Director, in their discretion, may grant an
extension by written agreement of the parties.
B) Extensions to be Granted by Executive
Director. No extension may be beyond a period established by statute, except
for cases in which a written motion for continuance of a scheduled hearing is
filed with the Secretary for the Merit Board at least 2 workdays prior to the
time scheduled for hearing unless an exception is granted by the Executive
Director. The moving party must set forth emergency grounds for a continuance,
which are limited to unforeseen, unavoidable, or uncontrollable circumstances,
such as an Act of God; the sudden illness or death of the movant, a member of
their immediate family, or their legal counsel; or if the movant is able to
demonstrate some other real and compelling need for additional time. If there
is an arrest or criminal indictment of any employee that resulted from an
employee's conduct in the course of employment duties, the Executive Director,
at the request of the employee, may grant a continuance of hearing pending some
resolution of the criminal charges. A request for a continuance must be
preceded by contacting the opposing party and asking for agreement to the
continuance.
C) Deadlines That May
Be Extended. The time periods set forth in this subsection (f), except for the
15-day period set forth in subsection (f)(5)(A) and except for any time period
provided for seeking administrative review of a final decision of the Merit
Board, shall be deemed directory and not mandatory; and no failure to comply
with any of the time periods set forth in this subsection (f), except for the
15-day period set forth in subsection (f)(5)(A) and except for any time period
provided for seeking administrative review of a final decision of the Merit
Board, shall cause the Merit Board to lose jurisdiction of any
matter.
D) Weekends and Holidays.
If the last date for filing falls on a weekend or a legal holiday, the last
date for filing is the first workday following that weekend or legal
holiday.
16) Hearing
Expenses
A) Employer Expenses. All customary
and reasonable court reporter and copying expenses incident to the preparation
of the Hearing Record and providing copies to parties to the proceedings shall
be paid by the employer.
B) Merit
Board Expenses. The Merit Board will pay all expenses of the Hearing Board or
Hearing Officer and any legal expenses incurred by a Hearing Board or Hearing
Officer, to the extent that those expenses have been approved by the Merit
Board or its Executive Director. The Merit Board shall determine the
reimbursement rate for the Hearing Board or the Hearing Officer.
g) Demotion
1) Any of the actions described in this
subsection (g)(1) are considered to be a demotion when that action has been
initiated by the employer. A demotion may occur when a status employee:
A) is subject to a reduction in salary in
their current position or in a position of the same class to which they have
been reassigned, except when the reduction in pay results from an overall
reduction in pay to persons employed in the same class and/or when the Merit
Board, on the basis of supporting evidence, determines that the pay potential
should be lowered for a class;
B)
is subject to a reduction in the percentage of time worked;
C) is appointed to a position in a lower
class in a promotional line;
D) is
appointed to a position in a class outside a promotional line with a lower pay
potential;
E) is given a nonstatus
appointment.
2) None of
the actions described in subsection (g)(1) are considered to be a demotion when
the action has been initiated, or willingly accepted, by the employee.
A) Evidence of initiation by, or willing
acceptance by, an employee (i.e., a "voluntary demotion" or "voluntary
downgrade" or similar action) shall be: a statement signed by the employee (to
be filed by the employer with the notice of employment) indicating that the new
appointment is at their request and/or is acceptable to them, or the employee
applied for, and took, the Civil Service examination, upon the results of which
the new appointment is based, after the date of certification to their most
recent position.
B) Without the
evidence indicated in subsection (g)(2)(A), the action will be considered to
have been initiated by the employer and, therefore, will be considered to be a
demotion.
3) Any
classification plan changes authorized and implemented by the University System
and/or the Merit Board that may result in a lower pay potential will not be
considered a demotion.
4) An
employer may effectuate a demotion by filing a Notice of Demotion form with the
Merit Board and serving a copy of the Notice of Demotion on the employee by
personally serving the employee or by an overnight delivery service that
requires signature upon receipt and also by First Class U.S. Mail. The Notice
of Demotion form shall designate the position and class to which the employee
has been demoted and shall factually state the causes justifying demotion. The
effective date of the demotion shall be the "Proof of Service on Employee" date
on the Notice of Demotion form. A demotion shall be subject to the same hearing
and review procedures as are provided to an employee in the case of a
discharge. (See subsection (f).) During any hearing and review proceedings, the
employee shall be paid the approved rate for the class of the position to which
they have been demoted, as set forth in the Notice of Demotion form.
5) A status employee who is demoted by action
of the Merit Board to a position in a class in which they have never been
employed on a status appointment shall be placed in a designated class without
requiring further examination or probationary period.
h) Dismissal
1) An employer may dismiss an employee whose
name has been certified and who has been subsequently employed in a status
position at any time during the probationary period of employment in a class,
if the employer determines, pursuant to Section
250.90(a), that
the employee has failed to demonstrate the ability and the qualifications
necessary to furnish satisfactory service.
2) The employer shall notify the Executive
Director promptly of dismissals, setting forth the reasons for the
dismissal.
Notes
Amended at 36 Ill. Reg. 6014, effective April 6, 2012
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No prior version found.