Employees who are disciplined have the right to file an appeal. Burdens of proof and appeals processes may differ, depending on the category of employee.
Skilled or professional service employees
Appeals of disciplinary actions must be filed with the head of the principal unit or designee, in writing, within 15 days after the employee receives notice of the disciplinary action with the head of the principal unit, typically the Secretary of the employing department, or the Secretary’s designee. An appeal should state, to the extent possible, the facts and law(s) that the employee believes would support the request to rescind the action.
The Secretary or designee may (but is not required to) confer with the employee before issuing a written decision, which must be issued within 15 days after receiving the appeal (although the failure to respond by this deadline is considered a denial, from which an appeal may be made).
Within 10 days of receiving the decision (usually referred to as the “Step 1” decision), the employee may appeal the decision to the designee of the Secretary of Budget and Management (DBM), the Employee Relations Division within the Office of Personnel Services and Benefits. Within 30 days of receiving the appeal, a settlement conference will be scheduled in the hope that a mutually satisfactory resolution may be reached. If not, the appeal may be forwarded to the Office of Administrative Hearings (OAH) for a hearing.
At OAH, an administrative law judge (ALJ) will hear testimony and accept documentary evidence before rendering a decision on the appeal. The ALJ may uphold the action, rescind it, or modify it. The ALJ has the power to restore lost time, compensation, status or benefits or in the case of a termination, order reinstatement and/or full back pay and benefits.
“At will” employees (i.e., positions in the management or executive service, or positions designated as special or political special appointment)
These employees may file an appeal of a disciplinary action with the head of the principal unit within 15 days after receiving notice of the disciplinary action. The appeal may be based only on the grounds that the disciplinary action is illegal or unconstitutional. The employee bears the burden of proof in such a case.
The head of the principal unit or his or her designee may confer with the employee before rendering a written decision. The decision may uphold the disciplinary action, rescind or modify it, and restore to the employee any lost time, compensation, status or benefits. The head of the principal unit or designee must render a decision within 15 days after receiving the appeal. This decision is the final administrative decision (i.e., the employee may not appeal to the DBM Secretary).
Employees on probation following a promotion or reinstatement to a skilled or professional service position
Employees who are in probationary status following a promotion or reinstatement and who are disciplined short of demotion or removal from the position, follow the same procedures as skilled or professional service employees who are not on probation.
If an employee who is in a probationary status following a promotion or reinstatement is, in the judgment of the appointing authority, unable or unwilling to satisfactorily perform the duties or responsibilities of the position, the employee must be returned to the employee’s former position if it is vacant, or demoted to a comparable position to that previously held within the appointing authority’s jurisdiction.
