Your case will be
heard and decided by an Administrative Law Judge (ALJ) who works for the State
Personnel Board (the Board). The Board hears
appeals by classified employees and some applicants in the state personnel
system. The information provided here
is general information about Board hearings.
The Board provides this information to help you in the hearing process,
but it is not legal advice and is not intended to be a substitute for having
your own lawyer. Not all cases are the
same and your case may be different. It
is not proper to talk to the ALJ or Board staff about the facts of your
case or to ask them for legal advice.
******
WHAT
QUESTIONS CAN THE BOARD STAFF ANSWER?
STATE PERSONNEL BOARD
LEGAL ADVICE GUIDELINES
We will help you if we can, and we will treat
everyone equally. However, we are
prohibited by law from offering certain types of assistance.
·
We Can answer general questions about how the Board works.
·
We Cannot explain decisions or let you speak to the ALJ outside of the
courtroom.
·
We Can provide you with contact information for legal services programs.
·
We Cannot refer you to specific lawyers, contact programs or lawyers for
you, or give answers that involve legal advice.
·
We Can give you general information about Board rules, terminology,
procedures, and practices.
·
We Cannot advise you as to how the Board rules and procedures will be
applied to your case.
·
We Can provide you with certain information from your case file.
·
We Cannot provide you with information that has been restricted by order or
law.
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We Can provide or refer you to Board forms and instructions.
·
We Cannot tell you how you should complete the forms or complete the forms
for you.
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We Can answer general questions about Board deadlines.
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We Cannot tell you what to say in hearing.
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We Can provide schedules and information on how to file an appeal and
schedule a hearing.
·
We Cannot advise you whether you should file an appeal or give you an
opinion about what will happen if you file an appeal.
·
We Can review your forms by checking for signatures, case number, and
similar information.
·
We Cannot correct forms for you or tell you what corrections should be made.
·
We Can tell you whether or not an order has been issued and what the
order is.
·
We Cannot talk to the ALJ for you or change an order from an ALJ.
IS THERE A WAY TO SETTLE THIS WITHOUT A HEARING?
•
Cases often settle without
going to hearing. The parties may
discuss settlement and settle a case at any time. You may contact the lawyer for the other side to see if you can work
something out. You may request a
settlement conference or mediation at the Board by calling 303-866-3300. Upon request, the Board provides trained
settlement facilitators and mediators at no cost to the parties.
•
Settlement
discussions or mediation do not put your case on hold. All deadlines in the case remain the same
unless the ALJ changes them.
WHAT SHOULD I KNOW ABOUT THE LAW AND PROCEDURAL RULES?
You should
familiarize yourself with the State Personnel Board Rules and Administrative
Procedures (4 CCR 801). This
document is not a substitute for the Board Rules. You can view the Board Rules and Administrative Procedures by
clicking on the “Board Rules" button on the left-hand side of the Board's
homepage at: http://www.colorado.gov/dpa/spb/ and then clicking on the
"Rules and Procedures” button to see these rules. You can also view the State Personnel Board
Rules and Director's Procedures directly from the State Personnel Board site
at: http://www.colorado.gov/dpa/spb/rulesnew.pdf. The Board Rules contain important deadlines and procedural
guidelines. You should also carefully
read the Notice of Hearing and Prehearing Order and pay attention to all
deadlines.
WHAT
HAPPENS AT THE HEARING?
In
most cases, the employee must introduce evidence to prove his or her case. Generally, you
must show that the decision of the appointing authority was arbitrary,
capricious or contrary to rule or law.
If you have the burden of proof in a hearing, you must present your
evidence first at the hearing, and the state agency then presents its evidence.
WHAT KIND OF
EVIDENCE WILL I NEED FOR THE HEARING?
·
You may testify at the hearing,
if you have listed yourself as a witness on the prehearing statement. You may also bring other witnesses to the
hearing who know about the facts and issues involved in the case. If there are documents, such as letters or
performance evaluations, that help prove your case, bring the original and at
least three copies to the hearing. You
may also bring photographs or other items that relate to your case that you
want the ALJ to consider. Documents,
photographs, records, and reports can be considered by the ALJ if permitted by
the Colorado Rules of Evidence.
·
Every state agency is
represented by an attorney, usually an Assistant Attorney General
("AAG"). You must send copies
of all correspondence, exhibits, and pleadings to the AAG or other attorney
assigned to your case. His or her name
and address are on the Certificate of Service on all Board orders. When you
file your prehearing statement at the Board, you must provide a copy of the
prehearing statement and all exhibits to the AAG. If you do not provide a copy of your exhibits the AAG, the ALJ
may not allow you to use them at your hearing.
Again, be sure to read the Rules and Procedures and follow all
prehearing orders issued by the ALJ.
·
If either party files a motion
in your case, the other party has ten (10) days to file a response with the
Board. See Board Rule 8-57.
HOW DO I GET RECORDS?
You
may try to get the documents just by asking the AAG. You also have the right to subpoena records or other things to be
produced at the hearing from individuals, businesses, and government
agencies. Contact the Board well before
the hearing for the subpoena forms. You must arrange to pay required fees,
including mileage, and have someone else (not you or your spouse) serve the
subpoena at least 48 hours before the hearing, not counting weekends and
holidays. You can also obtain records
through formal discovery.
WHAT IS "DISCOVERY"?
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Discovery is the process of
making a written request for documents and information from the opposing
party. You may request any document or
information necessary for your case (subject to objection by the opposing
party). Once your case is set for
hearing, you have just fifteen (15) days from the Notice of
Hearing to send your written discovery request to the other party. The other party has twenty days from receipt
of your request to respond. The same
applies to you, of course. If you need
more than fifteen days to prepare your request for discovery, you must file a
motion asking the Administrative Law Judge for more time. See Board Rule 8-58 for more information on
discovery.
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Discovery also includes
depositions and interrogatories. Depositions
are sworn statements of witnesses taken before the hearing before a court
reporter, without the ALJ being present.
Interrogatories are written questions, which must be answered in writing
under oath.
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If you cannot find out the
information you need by talking to the AAG, you may send written
interrogatories to the AAG. If the
agency fails to answer within 20 days, you may file a motion with the ALJ
requiring the other side to answer the questions or you may request a deposition
of a witness to find out the information.
If you want to take the deposition of a witness, you will be responsible
for any witness fees, court reporter fees and other expenses of the deposition. All exchanges of information, including
depositions, must be completed at least 10 days before the hearing.
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Upon request from the state
agency’s AAG, you must complete and return any requests for release of medical,
financial or other information. Be sure
to read the documents you receive to verify the time that you have to respond
to any discovery requests. If you believe there is a legal basis for not
answering a written question, sitting for a deposition, or complying with other
discovery requests, you may file a motion asking the ALJ to issue an order
protecting you from the discovery.
However, unless the ALJ issues such an order, you must comply with the
discovery. If you fail to do so, your
appeal may be dismissed and you may have to pay the state agency’s costs and
attorney fees.
HOW DO I
GET A WITNESS TO COME TO THE HEARING?
At hearing, you
have the right to call any witnesses you deem appropriate (subject to objection
by the opposing party). You may be able
to make arrangements with the AAG to have agency employees appear as witnesses
without subpoenas, but the AAG is not obligated to make this agreement. If the AAG does not agree to produce
witnesses, or if the witnesses you want are not employees of the state agency,
you will need to serve subpoenas on witnesses you wish to call on your
behalf. A witness can come voluntarily
to the hearing; however, a subpoena protects your right to require that person
to testify if his/her testimony is relevant to your case. Contact the Board well before the hearing to
get a subpoena to require the witness to
appear. You must pay required fees,
including mileage to the hearing, and have someone else serve the subpoena at
least 48 hours before the hearing, not counting weekends and holidays. If you subpoena expert witnesses, you may
have to pay for their time to testify at the hearing and their time to travel to
the hearing.
IS IT OK TO
BRING LETTERS INSTEAD OF WITNESSES?
A written statement by a witness who is not present
at the hearing is usually not allowed.
The best testimony is provided by witnesses present at the hearing,
either in person or by telephone or videoconference. However, you must request permission to take testimony by
telephone or videoconference in advance of the hearing.
IF
I FORGET SOMETHING,
CAN I SEND IT TO THE ALJ LATER?
Your chance to
present evidence is at the hearing. Only
in rare cases will the ALJ allow you to send evidence later. The Prehearing Order sets forth the deadlines
for filing your Prehearing Statements, in which you identify the witnesses
and their expected testimony and the exhibits you plan to present as evidence
at hearing. It also contains other
critical information. Read and follow
this document closely.
WHAT
IF I NEED AN
INTERPRETER?
If
you or a witness needs a language interpreter, you should arrange to bring your
own certified interpreter. Normally,
it is not okay to bring a friend or relative to interpret for you. You may contact the lawyer for the other
side to see if you can arrange for an interpreter or share an
interpreter. If you need a sign-language interpreter, contact the Board
at 303-866-3300.
WILL THE HEARING
LOCATION BE ACCESSIBLE TO PEOPLE WITH DISABILITIES?
Hearing
locations are accessible to persons with disabilities; however, check in
advance with the Board to ensure accessibility. In addition, if you know of persons who plan to attend and who
have special needs that require reasonable accommodation, contact the Board as
soon as possible so arrangements can be made.
WHAT IF I
CAN'T BE THERE ON THE DAY SET FOR THE HEARING?
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If you cannot attend the hearing
on the date and time shown, you must contact the AAG and the Board as soon as
you know of the problem. Contact the
AAG to see if that party will agree to change the hearing date. If that party agrees, you must provide the
Board with three alternative hearing dates to which both parties agree. If the AAG does not agree, contact the Board
immediately.
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You can also ask the ALJ for an
extension of time to file a prehearing statement or other documents, but you must
show good cause. The sooner you make
your request, the more likely it will be granted.
ARE THE HEARINGS AND RECORDS CONFIDENTIAL?
Hearings are open to the public, and files are also open to the
public. If a hearing or record that
normally would be open to the public contains sensitive or personal information
(such as medical records), a party can ask the ALJ to close the hearing to the
public.
WHAT
WILL MY HEARING BE
LIKE?
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Your hearing will be very
similar to a trial in court, with witnesses and exhibits presented by all
parties. The AAG will represent the
agency whose action you are appealing.
You may be represented by an attorney or you may appear and represent
yourself. If you represent yourself,
you must be comply with the State Personnel Board Rules and Administrative
Procedures, the Colorado Rules of Civil Procedure, and the Colorado Rules of
Evidence. The ALJ must remain neutral,
and cannot represent you.
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It is up to you to decide whether
you will hire an attorney. The Board
cannot appoint one for you. You may
choose to represent yourself, but an attorney may be better able to present
your case.
·
The Colorado Bar Association
keeps a list of attorneys you may be able to consult for free or for a small
charge.
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You should arrive at the place
where your hearing will be held before your scheduled hearing so that you and
any witnesses may be seated in the hearing room.
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The ALJ will tape-record the
hearing. This is important because the
tape-recorded record is necessary to produce a transcript of the hearing if
someone wants to appeal the ALJ's decision.
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When the hearing begins, the ALJ may ask each side what the issues
are and what each side intends to prove.
Each side then can introduce relevant evidence to prove its case. Evidence can include testimony taken under
oath or documents, such as letters or performance evaluations. In some cases, depositions may be used
instead of live testimony. A deposition
is a sworn statement taken before a court reporter outside of court, with all
parties having received notice of the deposition and having an opportunity to be
present. The depositions are filed with the ALJ, who reads them instead of
having the witnesses testify at the hearing.
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Each side is allowed to call
witnesses, who will take an oath to tell the truth. You may call witnesses and you may testify yourself. If you call witnesses, you may ask them
questions about the facts of your case (direct examination). After you are finished asking questions, the
AAG will ask questions (cross-examination).
You may then ask more questions about matters brought up by the other
side (redirect).
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Either side may object to
documents, and the documents will not be considered unless they comply with the
Colorado Rules of Evidence. The ALJ
will decide whether to allow documents into evidence.
·
If you testify, the ALJ may ask some questions. You also can make a statement. Then the other side will ask you questions
(cross-examination). You then will have
a chance to make another statement to respond to the questions asked by the
other party, but not to bring up new issues or topics.
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After each side has presented
its case, rebuttal witnesses may be called.
Rebuttal witnesses may only testify to issues already brought up by the
other side. Few hearings actually
involve rebuttal witnesses.
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After all testimony has been
heard, the ALJ may allow each side to make a closing argument. Closing arguments can only address facts
brought out in testimony of the witnesses or in exhibits received into
evidence. Closing argument is not a
chance to testify and you may not mention things that were not received in
evidence. Sometimes the ALJ may request
that the parties file a written closing argument after the hearing.
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Before the hearing closes,
you must submit all the evidence you want the ALJ to consider.
WHAT IF I DON'T GO TO THE HEARING?
If
your case is set for hearing and you do not attend the hearing, a dismissal
order will be issued dismissing your appeal. You may also be
ordered to pay the state agency’s costs and attorney fees.
WHEN WILL I GET A DECISION?
After
the closing arguments have been presented, the hearing is concluded. The ALJ may issue a ruling at the end of the
hearing or the ALJ may have to review the evidence. If the ALJ has to review the evidence, the ALJ will issue a
written decision within 45 days after the hearing. It is unusual for the ALJ to issue a ruling at the end of the hearing.
In most cases, the ALJ issues a written decision after reviewing the evidence.
CAN I APPEAL THE ALJ'S DECISION?
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To appeal the decision of the
ALJ, you must file a designation of record and a notice of appeal with the
Board. The designation of record
describes the portions of the evidentiary record you want to be considered on
appeal, which may or may not include a transcript of testimony. You must file the designation of record
within 20 calendar days of the date the ALJ’s decision was mailed to the parties. You must file the notice of appeal within 30
calendar days after the ALJ’s decision was mailed. The Board must receive the designation of record and the notice
of appeal by the deadline. If you do
not file the notice of appeal by the deadline, the ALJ’s decision automatically
becomes final.
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You may file a petition for
reconsideration of the ALJ’s decision within 5 calendar days after you receive
the decision. If you file a petition
for reconsideration, that does not extend the 30-day deadline to file
your notice of appeal of the ALJ’s decision.
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If you appeal the ALJ’s
decision, you will have to pay a $50.00 fee to have the Board prepare and
certify its record. If you designate a
transcript of the hearing, you will have to pay a court reporter to prepare
that transcript.