Chapter 3 – Personnel, Training, and Employee Relations

33030.28 Vertical Advocate’s Preparation for the SPB Hearing

• Upon notification from the SPBState Personnel Board (see CalHR) that an appeal has been filed, the EROEmployee Relations Officer/Disciplinary Officer and/or the Vertical Advocate shall notify the Hiring Authority and shall prepare for the SPBState Personnel Board (see CalHR) Hearing. The Vertical Advocate shall represent the Department at SPBState Personnel Board (see CalHR) Hearings for all designated cases. In all cases presented by the Vertical Advocate, the EROEmployee Relations Officer/Disciplinary Officer shall provide administrative support to the Vertical Advocate including, but not limited to, service of witness subpoenas.

• The Vertical Advocate shall prepare for the SPBState Personnel Board (see CalHR) Hearing, including the following, as appropriate:

  • Prepare the defense by confirming:

    • Due process compliance, including notice, documentation, Skelly Hearing (if requested) and proper service.

    • Deadlines, statutes of limitations, and other critical time requirements.

  • Contact the appellant’s representative to discuss relevant issues, including defenses, potential for settlement, etc.

  • Make discovery requests.

  • Respond to discovery requests.

  • Draft pre-hearing motions (e.g., motion to dismiss for failure to file a timely appeal).

  • Respond to pre-hearing motions.

  • Identify witnesses, including experts, and assess what testimony they can provide.

  • Request that the witnesses review any transcripts of their interviews to ensure their accuracy.

  • Contact the EROEmployee Relations Officer/Disciplinary Officer for the issuance of subpoenas to witnesses and experts.

  • Interview witnesses, as necessary (i.e., if the Vertical Advocate has not participated in the investigative interview).

  • Select witnesses to testify.

  • Prepare witnesses in person, including the assigned investigator, for testimony at the SPBState Personnel Board (see CalHR) Hearing.

  • Visit the location of the incident leading to the disciplinary action.

  • Identify exhibits to be introduced at the SPBState Personnel Board (see CalHR) Hearing and request reproduction of the exhibits by the EROEmployee Relations Officer/Disciplinary Officer.

  • Assess the current strengths and weaknesses of the Department’s case, whether and how the weaknesses can be overcome, and develop a strategy for the case.

  • Assess the current strengths and weaknesses of the appellant’s case, including what his or her defenses are likely to be and how to counter them. For example, consider the following:

    • What were the appellant’s defenses during the Skelly Hearing?

    • Who did the appellant subpoena?

    • To what can the appellant’s witnesses testify?

    • Other possible defenses, including:

      • Statute of limitations violations.

      • No nexus between wrongful act and employment with the Department.

      • No progressive discipline.

      • The appellant is the subject of disparate treatment, retaliation, or discrimination.

      • The appellant previously has been disciplined for the same incident(s).

  • Prepare a hearing binder, including the following:

    • Exhibit list and a copy of each exhibit.

    • Witness list in the order in which they will testify.

    • List of witness contact numbers.

    • Opening Statement Outline.

    • Direct and cross-examination questions and, when appropriate, the anticipated answers.

    • Closing Argument Outline.

    • Applicable precedential decisions, statutes, regulations, etc.

  • Research potential legal issues.

  • Draft briefs, when necessary, utilizing and augmenting where appropriate the EAPT brief bank.

  • Communicate with the SAIG, for cases the BIR is monitoring, including whether the SAIG will attend the SPBState Personnel Board (see CalHR) Hearing.

  • Consult with the assigned SAIG regarding SPBState Personnel Board (see CalHR) Hearing strategy.