The Civil Service Commission shall hear and dispose of appeals as provided in this section. Any employee who is dismissed or demoted after completing the employee's probationary period of service, or who is suspended for more than ten days in any one year, may, within thirty days after such dismissal, demotion or suspension, appeal to the Commission for review thereof. Every appeal shall be heard promptly. Upon such review, both the appealing employee and the appointing authority involved shall have the right to be heard publicly and to present evidence; but technical rules of evidence shall not apply. The findings and decisions of the Commission shall be in writing and shall be certified to the Personnel Director.
If the Commission sustains the appeal on the ground that the action complained of was taken by the appointing authority for any political, religious or racial reason, or labor union activity lawful for municipal employees, it shall order the employee to be reinstated to the employee's former position without loss of pay for the period of the employee's suspension. In all other cases where the Commission sustains the appeal of the employee it shall order the reinstatement of the employee in the employee's former position with or without loss of pay for the period of the employee's suspension or direct that the employee be appointed to a position of equal status in the same office, department, board or commission with or without loss of pay for the period of the employee's suspension. If the Commission overrules the appeal of the employee, it shall confirm the action of the appointing authority which shall be final as of the date it was taken.
Findings and decisions of the Commission and any action taken in conformance therewith as a result thereof shall be final and there shall be no further appeal on the merits, but there may be an appeal to the courts on jurisdictional or procedural grounds.
ANNOTATION
Sources: A Model State Civil Service Law, Section 13.
Purposes: 1. The major function of the Civil Service Commission is to serve as an appellate tribunal in cases involving employees against whom disciplinary action by dismissal, demotion or suspension has been taken. The day-to-day administration of the civil service system is the responsibility of the Personnel Director. See Annotation to Section 7-100.
2. The right to City employment is not an absolute one. On the other hand, employees lack many of the advantages and opportunities of employees engaged in private industry. The City is entitled to obtain the services for which it pays, but some measure of protection has to be afforded to an employee against whom disciplinary action is taken to assure that it is not arbitrary. This section approaches the problem on a basis which seeks to protect the interests of the City, the employee and the taxpayer.
3. An employee is given the right to appeal from action taken against him to the Civil Service Commission. He has this right in the case of any suspension for more than ten days, a limitation imposed to prevent the overburdening of appeal dockets. Upon an appeal, the employee is entitled to be heard publicly and to present evidence in his behalf but he may request a private hearing if he deems that desirable and the appointing authority accedes to his request. The latter qualification is necessary because the interests of the City may sometimes be served by a public hearing. Technical rules of evidence are not applicable because the proceeding is an administrative one and fairness to the employee and to the City requires that all facts pertaining to the case be presented regardless of any legal; exclusionary rules of evidence. Further protection is afforded to the City and to the employee by the requirement that the findings and decisions of the Commission must be in writing. They are to be certified to the Personnel Director so that he may know what action, if any, must be taken.
4. An employee has an absolute right to reinstatement to his former position without loss of pay if his appeal is sustained on the grounds that the action taken against him was for any political, religious or racial reason, or labor union activity lawful for municipal employees. Merit principles of employment preclude action taken against an employee because of his political beliefs and tenets. Of course, where the reason is that the employee engaged in political action prohibited by the Charter, the rule stated does not apply. American traditions, the principles of this Charter, and a merit basis of employment preclude action against an employee because of his religious beliefs or his race. To the extent labor union activity by City employees is lawful, it cannot afford a basis for dismissal, demotion or suspension.
5. Whenever dismissal, demotion or suspension is for reasons other than those noted in the preceding paragraph, it is the Commission's duty to decide whether the action appealed from was justified. If the Commission has jurisdiction and the procedure upon appeal meets the requirements of due process and of the Charter, the Commission's action whatever it may be, provided it conforms to the Charter, is determinative of the case, and is final. There may be no further appeal in any event on the merits of the case. The Charter precludes an independent review of the evidence by any court. The sole grounds to sustain a further appeal to the courts are lack of jurisdiction of the Commission, a failure of procedural due process, and a failure to conform with Charter requirements.
6. If the Commission overrules an appeal, the action of the appointing authority is to be confirmed and is to be final as of the date it was taken. If the Commission sustains an appeal, the problem is more difficult. Complete fairness to the injured employee would require that he be reinstated in his former position. However, this may be disadvantageous to the City for the reasons leading to the disciplinary action taken, although not justifying such action, may be cause for disrupting routines and efficiency. The solution arrived at seeks to balance all interests involved. An employee dismissed, demoted or suspended for political, religious or racial reasons, or labor union activity lawful for municipal employees, is to be reinstated to his former position without loss of pay for the interest to be protected here is an absolute and fundamental one. In other cases, the Commission has the alternative of requiring reinstatement in the former position without loss of pay for the interest to be protected here is an absolute and fundamental one. In other cases, the Commission has the alternative of requiring reinstatement in the former position or in an equivalent position in the same unit of government, depending on the circumstances of the case, with or without loss of pay. If reinstatement in the same position will tend to disrupt effective working conditions, the latter course will be indicated and the employee will still be protected against being assigned to a position the duties of which are unfamiliar to him, or to a position where there is no vacancy or which involves a reduction in rank or salary.
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Notes
| 149.6 | Amended by approval of the voters at the election held on May 17, 2022, and certified on June 6, 2022. See Bill No. 220001 (approved February 25, 2022); Resolution No. 220009 (adopted February 24, 2022). The phrase "period of his suspension" in the second paragraph was changed by the Code editor to read "period of the employee's suspension" to be gender neutral consistent with the broad Charter change set forth in the May 17, 2022 referendum. |