§ 3.30.103. Pre-disciplinary hearing.

A dismissal, demotion with reduction in pay or suspension without pay of an employee, who is not an executive unless serving a probationary period for any reason, shall be accomplished and reviewed only in accordance with the procedures stated in this section.

A.

Before an agency head may dismiss, demote with a reduction in pay or suspend without pay an employee, the employee shall receive written notice of intent to discipline containing a reasonably specific statement of the basis for the intended discipline, an explanation of the employee's entitlement to ask for a hearing at which such intended discipline may be reviewed and the name of the hearing officer who will be used at the hearing if a hearing is requested. If the employee is unavailable, the notice shall be given by mail.

B.

The employee may request a hearing only by submitting a written request to his agency head, on a form to be provided by the director, no later than 5:00 p.m. on the seventh calendar day following the day on which he received the notice of intent to discipline or the date of mailing such notice. The employee may request either a pre-disciplinary hearing or a post-disciplinary arbitration. Failure of the employee to timely submit written notice of his selection on the designated form shall constitute a waiver of the employee's right to both a pre-disciplinary hearing and a post-disciplinary arbitration.

C.

The director shall schedule a pre-disciplinary hearing no later than the 15th workday after the notice of intent to discipline is provided to the employee. The director shall designate an impartial individual experienced in dispute resolution to serve as a hearing officer at the pre-disciplinary hearing. The director shall not designate as a hearing officer any individual who is a municipal employee unless otherwise agreed upon by the parties. The pre-disciplinary hearing shall be held only if the employee submits a timely written request as provided in subsection B of this section. If for any reason the employee objects to the hearing officer designated by the director, he must so indicate in writing no later than 5:00 p.m. on the seventh calendar day following the day on which he received the notice of intent to discipline or the date of mailing such notice and select, at that time, an alternative hearing officer who is available to conduct the hearing within 15 days of the notice of intent to discipline from a list maintained by the director.

D.

Existing pay status shall not be provided beyond the 15th day if the employee or his representative requests and is granted an extension of the hearing date for any reason. If the municipality requests and is granted an extension of the hearing date for any reason, the employee shall be continued in pay status.

E.

Chapter 3.60 shall not apply to a pre-disciplinary hearing conducted under this section provided that regulations are promulgated setting forth rules and procedures for the conduct of pre-disciplinary hearings.

F.

The hearing officer may exercise independent judgment as to the weight of the evidence and on legal issues raised by the parties. The employer shall prove the existence of just cause to discipline the employee by a preponderance of the evidence presented.

G.

The hearing officer shall issue a written decision no later than two working days after the close of the hearing. The decision shall include reasonably specific findings of fact, conclusions of law, and a clear and precise statement of the reason for the decision.

H.

The hearing officer is limited to either upholding or denying the discipline based upon the existence of just cause to support it, and is not authorized to provide any other remedy.

I.

If the hearing officer denies the existence of just cause to support the discipline, the agency head, in consultation with the director, may then impose a lesser form of discipline for the conduct at issue at the hearing. If the lesser form of discipline is to be either suspension or demotion, the hearing officer shall retain jurisdiction to review and rule on that discipline. The employee may receive such review only by submitting a written request within seven calendar days of notice or date of mailing of such notice of the lesser discipline. The hearing officer shall issue a written decision within two working days of receipt of the petition for review.

J.

Section 3.30.102 shall not apply to an employee entitled to the procedures stated in this section unless the employee requests arbitration in writing as provided in subsection B of this section. If this section conflicts with any provisions of section 3.30.102, this section shall prevail. As a result of an arbitration on discharge grievances under section 3.30.102, an arbitrator may reinstate the employee only if the employer fails to prove just cause to support the discipline. For discharge grievances, reinstatement shall be the exclusive remedy; the arbitrator shall not award back pay.

K.

If a collective bargaining agreement incorporates this section by reference, the represented employee may make the same election as a nonrepresented employee between the pre-disciplinary hearing and a post-disciplinary arbitration or neither of them, as described in this section.

L.

Under no circumstances shall either a nonrepresented or a represented employee be entitled to request and participate in both a pre-disciplinary hearing and a post-disciplinary arbitration concerning a particular disciplinary action. This subsection prevails over any provision of a collective bargaining agreement incorporating this pre-disciplinary hearing entitlement that is inconsistent with this subsection.

M.

The affected employee may appeal the hearing officer's pre-disciplinary decision by filing a written notice of appeal with the state superior court for the Third Judicial District at Anchorage in accordance with the Alaska Rules of Appellate Procedure. The superior court shall have no jurisdiction to hear the appeal unless the employee files the notice of appeal within 30 days after the employee's receipt of the hearing officer's decision. The superior court shall limit its review to whether or not substantial evidence in the record supports the decision and to legal issues necessarily decided by the hearing officer.

(AO No. 86-207(S-1); AO No. 94-117, § 18, 7-26-94)