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Section 13 Appellate Procedure


13.01 Manner of Filing Appeals

All appeals to the Commission shall be in writing and shall include the following information:
  • The Employee’s name;
  • The Employee’s address and telephone number;
  • Employee’s Department; and
  • A copy of the action being appealed or a brief summary of the subject of the appeal.

Information regarding how to file an appeal, including initial appeal forms, can be obtained on the PRC’s website at http://PRC.cuyahogacounty.us. Appeals shall be filed with the Personnel Review Commission by mail, in person, by email (personnelreviewcommission@cuyahogacounty.us) or facsimile (216-443-3694).


13.02 Time for Filing Appeals

All appeals shall be filed with the Commission within ten (10) calendar days of the date on which the employee was served with the action in question, by the end of the PRC business day at 4:30 p.m. The date the employee receives the notice is not counted as part of the 10 days. In the event the Personnel Review Commission Office is closed due to a holiday or weekend on the 10th calendar day, appeals received the following business day will be deemed filed timely. Appeals filed after that date will not be considered.

An appeal shall be deemed to be “filed” when one of the following occurs:
  • The appeal is received in person and date stamped by the Commission;
  • The appeal is postmarked; or
  • The appeal is received by facsimile or e-mail (date of filing shall be the date marked on the appeal by the Commission’s facsimile machine or e-mail system).


13.03 Interim Appeals

The Commission retains jurisdiction over all applicable employment actions that were taken during the time period from January 1, 2011 through the effective date of these Rules. All employees who properly perfected appeals in accordance with the instruction provided by the Human Resources Department shall be considered to have met all of the filing requirements of this section. Employees who did not properly perfect appeals in accordance with the instruction provided by the Human Resources Department shall be deemed to have waived their right to appeal the underlying employment action.


13.04 Preliminary Jurisdictional Review

Upon receipt of an appeal, the Commission shall conduct a preliminary review to determine the following:
  • Whether the appeal was properly perfected in accordance with these Rules; and
  • Whether the Commission has jurisdiction to hear the appeal.

If the Commission’s Administrator determines that an appeal was not properly perfected or that the Commission lacks jurisdiction to hear the appeal, the Appellant will be notified in writing of the Administrator’s determination. The Appellant may file written objections to the determination within fourteen (14) calendar days after the date on which the determination was mailed. The Appellant must also send a copy of the objections to the Appellee’s legal representative (Law Department or the Prosecutor’s Office). The Law Department or Prosecutor’s Office shall have fourteen (14) calendar days from receipt of the objections to file a written response to the objections. At the first meeting following the expiration of the period for objection and response (if applicable), the Commission shall make a final determination of the jurisdictional issue. The Commission may accept jurisdiction over the appeal, dismiss the appeal or assign the appeal to a hearing officer for a determination of the jurisdictional issue. If the Commission accepts jurisdiction, the appeal will proceed in accordance with these Rules.


13.05 Hearings

Discovery/Subpoenas
The Hearing Officer shall have discretion to set dates for the exchange of documents and both parties must agree to these dates, or the default procedure will require that at least fourteen (14) calendar days prior to the scheduled hearing, the parties shall provide the opposing party copies of the documents intended to be introduced at the hearing and a list of witnesses to be called by the party to testify at the hearing. If a party fails to comply with this requirement, the Hearing Officer has discretion to exclude such testimony or documents from the hearing. In all cases, the Hearing Officers should make every effort to ensure that the appeal record is fully developed.

Prior to the hearing, the parties may make requests to the Commission (or Hearing Officer) to issue procedural orders commanding the opposing party to disclose certain documentation and/or information.

Upon the request of either party made on or before the tenth calendar day prior to hearing, the Hearing Officer or the Commission may, in its own discretion, issue subpoenas for such persons, documents, and attendance of witnesses as the requesting party deems necessary.

Parties are limited to five (5) subpoenas absent good cause. Discovery depositions shall not be permitted.


Failure to Appear
Upon failure of the Appellant to appear for the record hearing within at least 30 minutes of the scheduled hearing time, and on showing of proof of service of the notice of hearing, the Commission (or Hearing Officer) may dismiss the appeal.

Upon failure of the Appellee to appear for the record hearing within at least 30 minutes of the scheduled hearing time, and on showing of proof of service of the notice of hearing, the Commission (or Hearing Officer) may grant appropriate relief, including the disaffirmance of the employment action.


Burdens of Proof
With regard to a disciplinary action, the Employer is required to prove by a preponderance of the evidence:
  • That the Employer has substantially complied with the procedural requirements detailed in Section 6 of these Rules; and
  • That the employee committed a sufficient disciplinary offense(s) to justify the discipline received.

With regard to an abolishment (classification or position), the Employer shall demonstrate by a preponderance of the evidence:
  • that the Employer substantially complied with the procedural requirements associated with the abolishment; and
  • that the abolishment was undertaken due to a lack o f a continuing need for the position based on: a reorganization for the efficient operation of the Appointing Authority, reasons of economy, or a lack of work expected to last one year or longer. Certification of lack of funds or lack of work is not required for abolishments.

With regard to a layoff, the Employer shall demonstrate by a preponderance of the evidence:
  • that the Employer substantially complied with the procedural requirements associated with the layoff; and
  • that a layoff was undertaken due to a lack of work or lack of funds.

Abolishments (classification or position) and layoffs shall also be disaffirmed if the Commission determines that the action was taken in bad faith. The Employee is required to prove the Employer’s bad faith by a preponderance of the evidence.


With regard to reclassifications and assignments to classifications:

When an appeal presents the issue of whether an employee is properly classified, or properly assigned to a classification, the Hearing Officer shall conduct a fact-finding hearing to determine the duties performed by the employee in the position at issue. Prior to the hearing, the parties should file with the Hearing Officer a designation of what classification each contends best matches the employee’s duties. The Appellant can request a copy of the most recent audit of the employee’s position from Human Resources, and parties can access job descriptions or class specifications for the positions that each party has designated, and the class specifications for any adjacent classifications within the same classification series, through the Human Resources’ department website. If the Appellant does not have on-line access to these records, the Appellant may request the Human Resources department to provide hard copies of these records.
  • If the employee’s position has not been audited within two years, or if either the employee or the Appointing Authority contends that the employee’s duties significantly changed since the last audit, the Hearing Officer may recommend to the PRC that the appeal be stayed pending completion of a new position audit.
  • In an evidentiary hearing concerning the proper classification of an employee, the witnesses should be limited to the audited employee, the employee’s immediate supervisor, and/or the designee of the authority who conducted the position audit. In this type of evidentiary hearing the Hearing Officer might choose to conduct the primary examination of the witnesses, followed by limited examination by the parties.
  • The Hearing Officer’s Report and Recommendation should compare the duties performed by the audited employee to the appropriate specifications and determine which classification most appropriately describes the duties performed by the employee. It is not anticipated that evidence about whether other employees are properly classified would be relevant.

The standard of proof for all other appeals before the Commission shall be a preponderance of the evidence.

Determination of Unclassified Status
When an employee has been adversely affected as an unclassified employee, the burden of proving the unclassified status of the employee is on the appointing authority. The Commission will take evidence of the employee’s duties over a reasonable period of time, which is generally defined as one calendar year immediately prior to the adverse action, provided that the employee was in an active work status in the position at issue during that time period.

Official Record
All hearings shall be recorded by the use of audio electronic recording devices. The audio record is the official record and shall be maintained/destroyed in accordance with the Commission’s record retention schedule.

Post-Hearing Briefs
The Hearing Officer or Commission, in its own discretion, may allow the parties to a hearing to submit post-hearing briefs. A reasonable briefing schedule shall be established by the Hearing Officer or Commission in such cases. The official record shall be held open in such cases until the time for submittal of the briefs has passed. Any brief submitted within this time period shall be included as part of the official record.

Reports and Recommendations
After the official record has been closed, the Hearing Officer or the Commission will consider all evidence and submissions and issue a Report and Recommendation making findings of fact and conclusions of law. The Report and Recommendation shall be sent by electronic mail and regular mail to the last known post office address of the Appellant, and by electronic mail to the Appellee’s legal representative.

Either party may file with written objections to the Report and Recommendation with the Commission within fourteen (14) calendar days after the date on which the Report and Recommendation was mailed. For purposes of filing the objection, the written objection must actually be received by the Commission within the fourteen (14) day period. A party filing a written objection must also serve a copy of the objections on the opposing party. The opposing party shall have fourteen (14) calendar days from receipt of the objections to file a written response to the objections. The response to objections must be actually received by the Commission within this fourteen (14) day period.

The Objections and Responses must be received by the Commission within the time periods set forth in the preceding paragraph and by the end of the PRC’s business day at 4:30 p.m.

Motions for extension of time to object or respond to objections shall be submitted to the Commission at the address listed on the PRC’s website, by email (personnelreviewcommission@cuyahogacounty.us) or facsimile (216-443-3694). The PRC Chairperson shall have the authority to rule on the parties’ motions for extension of time to file Objections or Responses thereto. The parties may request one extension of not more than seven (7) days. Except for good cause shown no further extensions will be granted.


Electronic Filing/Service
The parties may submit documents, including notices, motions, objections and responses a long with any attachments/exhibits via the PRC’s database which can be accessed through the PRC’s website.

Parties will receive service of such filings at the electronic mail address on file with the PRC. If the opposing party does not have an electronic mail address listed on the notice of appeal or the notice of appearance, then the filing party is responsible for effectuating service via regular U.S. Mail.

The deadlines and requirements for filings with the PRC remain as set forth in these Rules.


13.06 Decisions of the Personnel Review Commission

At the first regular meeting of the Commission following the receipt of objections or responses, if applicable, the Commission will, as a regular item of business, consider the Report and Recommendation along with any objections or responses received in a timely manner. At that time, the Commission may take the matter under advisement.

At the point in time when the Commission acts upon a Report and Recommendation, it shall perform one of the following actions:
  • Vote to affirm the Report and Recommendation as written;
  • Vote to disaffirm the Report and Recommendation and submit a new decision;
  • Vote to modify the Report and Recommendation;
  • Vote to remand the matter back to the Hearing Officer to reopen the official record for additional evidence.

All votes taken under this Section shall be recorded in the minutes. The Commission shall notify the parties in writing of its decision. The notification shall also inform the parties of their rights (if any) to appeal to the Court of Common Pleas.


13.07 Appeals to the Court of Common Pleas

The decision of the Personnel Review Commission shall be a final order, and may be appealed by either the Appellant or by the County, as provided by general law.